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Military medical care laws being second-guessed

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The death this year of an Iraq war veteran whose skin cancer was misdiagnosed by military doctors has raised questions about a long-standing Supreme Court ruling that bars soldiers from suing the federal government.

Marine Sgt. Carmelo Rodriguez died in January just as a CBS News TV crew arrived to interview him. Doctors going back to 1997 mistakenly treated his deadly melanoma as a wart.

Despite questionable medical care, the Rodriguez family cannot file a medical malpractice suit because the New York man was on active duty. Military hospitals and personnel are immune from malpractice claims because of what is known as the Feres Doctrine.

The high court ruled in 1950 that the widow of a serviceman named Feres who died in a barracks fire had no right to sue the government for negligence. Courts since then have applied the decision to any injury related to active-duty military service.

It means soldiers like Russell Bridges, who believes he lost the use of his legs through a botched back surgery at a military hospital, have no legal recourse.

In attempt to change that for Bridges and other soldiers, Rep. Maurice Hinchey, D- N.Y., introduced the Carmelo Rodriguez Military Medical Accountability Act into Congress.

"Under the Federal Tort Claims Act, federal prisoners and even illegal aliens in the United States have the ability to seek damages from the federal government for medical malpractice, but members of our nation's military still do not," Hinchey wrote in a letter to the House Armed Services and House Judiciary committees.

The bill would reverse the Feres ruling.

Oregon resident Barb Cragnotti, who heads the Veterans Equal Rights Protection Advocacy, said military doctors need to be held accountable.

The Feres Doctrine, she said, allows institutional abuse. "That has to be stopped," she said in an interview.

Cragnotti, whose son suffered lung and neurological damage from undiagnosed pneumonia while in the Navy, said she understands the need for the law in combat situations. It should, however, be incidental to military service.

Proponents of the Feres Doctrine say it protects officers from being threatened by lawsuits from lower-ranking personnel. Moreover, some say it keeps doctors in the military.

Rep. Jim Matheson, D-Utah, in whose district Bridges lives, said incidents of soldiers and their families suffering are distressing. But he's not ready to change the law.

"Congress has raised concern about the Feres Doctrine with the highest levels at the Pentagon and the administration. Congress has been told that matters of national security require the doctrine to remain unchanged," he said.

Citing the rising cost of health care, Sen. Orrin Hatch, R-Utah, also sees no reason to change the law.

"Given the skyrocketing growth of health-care costs and the excellent level of care provided by military doctors and nurses, I cannot see how repealing the Feres Doctrine would help our troops or our nation," he said.

Four Supreme Court justices came within a vote of overturning Feres in 1987. In the dissenting opinion Justice Antonin Scalia wrote, "Feres was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received."

Congress has considered several bills like Hinchey's over the years, but none passed both houses.


E-mail: romboy@desnews.com