Servicemembers Injured By Medical Negligence Step Closer to Receiving Justice

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For Immediate Release: May 19, 2009

Contact: Ray De Lorenzi
202-965-3500, ext. 749
media.replies@justice.org

Servicemembers Injured By Medical Negligence Step Closer to Receiving Justice

House subcommittee today expected to approve Carmelo Rodriguez Military Medical Accountability Act, protecting legal rights of those who serve their country

Washington, DC ─  Military men and women injured by medical negligence will be a step closer to having their legal rights restored, as the House Commercial and Administrative Law Subcommittee is today expected to approve the Carmelo Rodriguez Military Medical Accountability Act (H.R. 1478).  Sponsored by Rep. Maurice D. Hinchey (D-NY), the bill restores the protections of the civil justice system to the men and women of our armed forces.

A 1950 U.S. Supreme Court ruling in Feres v. United States prevents servicemembers on active duty from holding the government accountable for non-combat related injuries.  This decision strips countless military families of their right to seek redress through our civil justice system.

“Considering the many sacrifices our men and women in uniform make to protect our country, we at least owe them the same rights the rest of us enjoy,” said Linda Lipsen, Senior VP of Public Affairs at the American Association for Justice.  “We must fix this incongruity and provide justice to servicemembers injured by medical negligence.”

The legislation is named after Marine Sgt. Carmelo Rodriguez, who served his country with honor for nearly a decade, including a tour of duty in Iraq, and died as a result of preventable medical negligence.  A blotch on his buttock went untreated and misdiagnosed multiple times by military doctors.  Years later, when Rodriguez learned it was a melanoma, it was too late, and he died from skin cancer holding the hand of his seven-year-old son.

The bill will also help servicemembers like Colonel Adele Connell, who has served in the US Army for more than 34 years, and underwent breast cancer surgery at Walter Reed Army Medical Center in Washington, D.C., in December 2008.   Because of her cancer risk, the plan was to perform a therapeutic mastectomy on her left breast and a prophylactic mastectomy on the right, with lymph node biopsies on both sides.  However, as the Walter Reed medical records show, the attending surgeon (a civilian who is a former Army doctor) “incorrectly believed the known invasive cancer was on the right side.”  When the attending surgeon was unable to locate the sentinel lymph node on the RIGHT (wrong) side, she proceeded to remove 17 axillary lymph nodes.  A sentinel lymph node was also removed from the LEFT side (where the carcinoma was actually located).  No cancer was found in any of the removed lymph nodes.

The Operative Report reveals that the surgeons learned of their mistake only when they spoke with the patient’s daughter after the mastectomies had been carried out: “It was she [the daughter] who corrected us and noted that the known cancer was actually on the left breast, which was contrary to what our mindset was in the operating room.  We reviewed the preoperative notes and noted that this indeed was the case, that the left breast was the breast with cancer.”  A claim has been filed with the US Army Claims Service under the provisions of the Federal Tort Claims Act, but the Army has made it clear that it intends on relying upon the Feres doctrine to deny her relief.  Colonel Connell is now left with tingling and burning in her right arm and no protection from future infections (lymphedema).

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