Richmond Virginia Personal Injury Lawyer - Wrongful Death

Repeal the Feres Doctrine

Michael Phelan — Tue, 19 May 2009 10:37:28 GMT

Cindy Wilson was a 37 year old technical sergeant stationed at Langley Air Force Base. On February 20, 2007, she was to give birth to her first child. Sergeant Wilson was excited that her parents were making the trip from Georgia to experience the birth of their grandson. On that same day, Dr. Michael Carozza, the lead obstetrician on staff at Langley, had not even been issued his Virginia medical license. He was 31 years of age and had just completed his residency a few months before.

Just before midnight on Feb. 20, 2007, Sergeant Wilson gave birth by cesarean section to a healthy boy. But she never got to hold her baby. According to her medical records, a uterine artery was cut during the delivery, causing massive internal bleeding. The estimated blood loss was equivalent to the total blood volume of an average adult. Then, during frantic efforts to repair the damage, two surgical sponges were left in Wilson’s abdomen. Wilson's parents went to her Smithfield home to get some sleep. Around 4 a.m., her husband called. Wilson was going back to the operating room for emergency surgery caused by the sponges left in her body. When her parents got back to the hospital, “her room looked like a tornado had hit it,” Connie Wilson said. A piece of medical equipment was overturned and a needle lay on the floor.

Twelve hours after giving birth, she was dead. Dr. Carozza's Virginia medical license was issued on Feb. 21, 2007 – the day Cindy Wilson died. Carozza is still on the obstetrics staff at Langley.

In the following months, Sergeant Wilson's devastated parents got a second shock when they learned that they had no recourse – even for what seemed to them an egregious case of medical malpractice – because of a legal precedent known as the Feres Doctrine , which bars military members from recovery for personal injury or death "incurred incident to miltary service or duty." "Incident to service" means any and all activities, not just work-related military duties, to which the service member is exposed due to her military service- including use of base recreational facilities and receipt of health care services.

A vocal group of military families, lawyers and members of Congress say the Feres Doctrine renders service members second-class citizens and should be overturned. The doctrine goes back nearly 60 years to a 1950 Supreme Court ruling on a series of cases that became known as the Feres Doctrine. One of the Feres cases involved a soldier who was barred from suing after an Army doctor left a 30-by-18-inch towel marked “Medical Department U.S. Army” inside him. There have been similar cases through the decades in which foreign objects – usually sponges – were left inside patients who, because they were military personnel, were barred from suing. Such cases illustrate how the Feres Doctrine has contributed to substandard care in the military medical system, according to Jonathan Turley, a law professor at George Washington University who for years has been a leading critic of the doctrine.

“We see cases in the military involving conduct that would be viewed as perfectly medieval in the civilian world,” Turley said. “Decades ago, civilian doctors were sued over the practice of leaving sponges in patients. It used to be very common.” After a few lawsuits, the medical profession came up with a simple solution: Count the sponges before and after the procedure. Now it’s rare to see that type of malpractice in civilian medicine, Turley said. But because there is no fear of lawsuits , it keeps occurring in military medicine. “I consider the Feres Doctrine to be one of the most grotesque rules created in the history of this republic,” Turley said. “It has done untold damage to thousands of military personnel and their families.”

The Feres ruling grew out of the Federal Tort Claims Act of 1946, which waived the ancient common-law doctrine of sovereign immunity in certain circumstances to allow lawsuits against the government for negligent acts. Initially that law was interpreted to forbid lawsuits by military personnel only for combat-related injuries. The Feres decision widened that exclusion to bar any lawsuits over injuries “incident to military service.”

The ruling has been criticized by judges all across the ideological spectrum. A 5-4 Supreme Court decision reaffirming it in 1987 drew dissents from Justices John Paul Stevens on the left and Antonin Scalia on the right. Scalia wrote that Feres “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” Although the doctrine is not statutory (it arose from case law), it probably will require legislation to address its draconian effects. Attempts to repeal the doctrine have surfaced periodically in Congress for more than 20 years, but all have failed. The latest attempt to repeal Feres is the Carmelo Rodriguez Military Medical Accountability Act of 2009, introduced by U.S. Rep. Maurice Hinchey, D-N.Y. It’s named for a Marine constituent of Hinchey’s.

The measure would allow lawsuits on behalf of military personnel who are killed or injured by medical malpractice. It contains an exception for combat-related injuries and requires that any paid claim be reduced by the amount of any other government compensation resulting from the injury. Hinchey said the issue is one of simple fairness. “I think military personnel should be treated in normal ways,” he said. “Their medical issues should be dealt with responsively and attentively, the way we anticipate and expect the medical problems of ordinary citizens should be dealt with. We see far too much negligence in military medical care.”

In my opinion, this bill does not go far enough. I once represented a military reservist who was killed in a car accident by a drunk driver. Unfortunately, the service man was killed "incident to military service or duty" as he was reporting to base for training. Military personnel should have the right to sue (just like we all do under the Constitution) for all non-combat-related injuries or death.

Originally posted at InjuryBoard by Michael Phelan

Special Ed Child Kills Self After Being Forced By His School Into Seclusion Cell

Michael Phelan — Thu, 18 Dec 2008 10:21:30 GMT

This is a sad story of the wrongful death of a 13 year-old child who needed help from his special ed school but got a form of torture. A few weeks before a 13-year-old north Georgia special education student killed himself, he told his parents that his teachers had put him in "time-out." Understandably, his parents thought this meant their son had to sit in a chair in a quiet area for a few minutes.

Shockingly, however, time-out in the boy's north Georgia special education school was spent in something akin to a prison cell -- a concrete room latched from the outside, its tiny window obscured by a piece of paper. Called a seclusion room, it's where in November 2004, this special student hanged himself with a cord a teacher gave him to hold up his pants.

I am the chairman of the board of a private special education school, and know that the vast majority of professionals who dedicate their careers to special education are angels. I am becoming increasingly aware of and alarmed by the horrific exceptions to this rule. Child abuse in schools and treatment facilities which cater to the most fragile members of society, learning challenged children, is far too common. I am aware of one such case in which the institution adverstises itself as having expertise in providing healing services for severely abused children. One family alleges that this institution has no such expertise, and that it purposely employed abusive behavior toward a child in order to force the child to confront his past abuse. The alleged result is that the child is now so traumatized he cannot cope with the public.

Seclusion rooms, sometimes called time-out rooms, are used across the nation, generally for special needs children. Critics say that along with the death of the above-referenced child, many mentally disabled and autistic children have been injured or traumatized.

Few states have laws on using seclusion rooms, though 24 states have written guidelines, according to a 2007 study conducted by a Clemson University researcher. Please contact your local legislators and lobby for laws banning the use of abusive seclusion rooms on our innocent special needs children. They should not be treated like enemy combatants. My heart goes out to the parents of this poor boy. I know from personal experience they fought extra hard to get their child to where he was by age 13. In many ways, that must make his passing even more difficult.

Originally posted at InjuryBoard by Michael Phelan

New Mexico Appelate Court Upholds $14.9 Million Dollar Negligence Verdict

Zev Antell — Tue, 23 Sep 2008 16:55:23 GMT

Despite recent efforts by special interests to cap punitive damages, the fact remains that they are perhaps the best and only shield the general public has against egregious and unsafe actors.

According to an Associated Press article reprinted on CNN.com, a New Mexico Appellate Court recently upheld a jury verdict of almost $15 Million dollars in compensatory and punitive damages against a Natural Gas Company. The trial court jury originally found that Energen Resources Corporation had acted recklessly in leaving a natural gas well head exposed and unprotected in an area known to be frequented by young people and off road enthusiasts. While out “off-roading,” the plaintiff inadvertently backed his car into the well head causing a fire that took his life. The jury found Energen’s conduct to be reckless in that they knew of the danger posed by the wellhead but did little to prevent an accident like this from happening.

Energen’s appeal focused on its argument that the jury award, which included $13 million dollars in punitive damages was unreasonable and thus unconstitutional. The appellate court disagreed and upheld the jury’s finding. The court saw little problem with a punitive damages award that achieved “dual goals of punishment and deterrence.”

Punitive damages are often cast in a negative light, and maybe that reputation is sometimes deserved. However, this case shows that punitive damages when used properly can serve as a powerful deterrent against irresponsible conduct.

Originally posted at InjuryBoard by Zev Antell

Life Imitates Art in Mississippi Supreme Court

Michael Phelan — Mon, 25 Aug 2008 15:15:04 GMT

In an unprecedented action, the Mississippi Supreme Court attempted to bar the publication of a dissenting opinion by a sitting Supreme Court Justice. The case is a wrongful death case called Mississippi Veterans Affairs Board v. Kraft. One of the issues on appeal involved the statute of limitations, which governs the time limitation for filing a lawsuit. The court had earlier reversed 150 years of Mississippi jurisprudence in deciding that the statute of limitations in wrongful death cases begins to run at the time of the wrongful act rather than at the time of victim's death. In the Kraft case, Justice Oliver Diaz hoped that the court would grant certiori, hear the case, and reverse the incorrect interpretation of when the wrongful death cause of action accrues. When the majority refused to grant cert, Justice Diaz issued a dissent opinion pointing out the flaws in the analysis in the case which held that the statute of limitations begins to run at the time of the wrongful act. Justice Diaz pointed out in his dissent that this rule could lead to the absurd result where the time for filing a wrongful death case expired before the victim actually died. The justices in the majority voted to bar the publication of Justice Diaz's dissent. Mississippi legal scholars report that this action is unprecedented. Sounds like John Grisham needs to write an addenda to The Appeal.

Originally posted at InjuryBoard by Michael Phelan

Virginia Considers Raising It's Damages Cap Under the Tort Claims Act

Michael Phelan — Mon, 14 Apr 2008 16:26:41 GMT

In the aftermath of the horrific Virginia Tech shootings, the Virginia General Assembly is considering whether the limits on the state's liability in cases of negligence should be increased above the current $100,000 cap. The cap was last raised in 1983 from $25,000 to $100,000. After 40 families of those killed or injured a year ago at Virginia Tech filed tort claims against the state, legislators decided to study the issue of raising the cap this coming summer. The low cap limited the state's ability to settle with the families. On Thursday, Governor Kaine announced that a majority of the families agreed to accept an offer that will pay $100,000 plus health benefits and other non-monetary assistance to the families of the 32 people killed by Seung Hui Cho, while those injured will receive up to $100,000 depending upon the severity of their injuries. This appears to be a bi-partisan discussion in which Del. David Albo, a fellow trial lawyer, suggested the cap be permanently indexed to inflation.

I am encouraged that the General Assembly is considering doing what is equitable. As Delegate Albo correctly stated, "what was $100,000 in 1993 is not $100,000 today." The same level-headed approach should be taken with the medical malpractice cap which not too long ago was capped at a stagnant $1 million. Several years ago, the General Assembly raised the medical malpractice cap for acts of malpractice occurring on or before August 1, 1999 to $1.5 million with annual increases in the sum of $50,000 from July 1, 200 through July 1, 2006 and $75,000 on July 1, 2007 and 2008. To some, this may seem like a fair approach. However, consider the hypothetical case of the child who is born with profound physical disabilities as a result of being delivered by a negligent doctor who performed the delivery under the influence of drugs or alcohol. This child may need life long therapies and surgeries, but may also have a full life expectancy. Leaving aside the family's emotional damages, the child's medical bills alone will far exceed the medical malpractice cap in the first 10 years of his or her life. Is this fair?

Originally posted at InjuryBoard by Michael Phelan