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Making Disclosure A Reality For Healthcare Organizations 

Lawyers Still Pooping on Soldiers? Issue for Obama, Presidential Candidates?

armyLast fall we wrote a column in this space concerning how the military appeared to be establishing a disclosure-type program for military medicine. At the time we praised this effort, albeit with some caveats. According to the publication Military Times, the program would not determine fault or errors, and the program's participants would cease communication with the patient/family if litigation ensued. We wrote in our piece changes were needed in these facets of the military's approach to be considered a true disclosure program. See here for the original blog post from November 2015. Well, within the last month, Military Times published a lengthy article on the state of medical malpractice cases in military medicine, and, this time, it was NOT a rosy picture of disclosure, apology, reconciliation, etc. It was the exact opposite. Many med-mal cases involving military personnel are potentially subjected to the Feres doctrine, which is a 1950 Supreme Court case (Feres v. United States) regarding a medical malpractice lawsuit filed by an active duty solider. In that case, the U.S. Supreme Court ruled that active duty soldiers could not sue the government for injuries or deaths caused by mistakes of their military brethren. I've had several military personnel explain to me that our armed forces don't want soldiers or their family members suing the government because a commander gave an order in battle that led to injury or death -- which I think makes sense. What I don't understand -- and many people are befuddled along with me -- is how the Feres doctrine can be applied to a state-side military hospital where negligent medical care is rendered. The recent Military Times article provided an example of a soldier giving birth to child, the child suffering significant birth injury which led to crippling, life-long injuries, BUT the family's medical malpractice lawsuit has been rejected by two courts that invoked the Feres doctrine.

The military responds to these arguments by saying they provide a work-comp like system for injuries sustained due to medical errors from military medical care. But, military families still feel cheated. It's not only the compensation piece that may be lacking in some of these cases, but also the lack of accountability and improving medical care for future soldiers, as well as apology and disclosure. Military families are no different than the rest of us...they want answers and honesty after something goes wrong. And our military families feel cheated when their cases --- which would be easily pursued if they were civilian -- are blocked by a 66-year old Supreme Court ruling.

Here is another article from Military Times on this issue.

In reading these different articles and in thinking about conversations I have had with military people, two themes are constantly reinforced: 1) It's not fair; and 2) military medicine will never improve unless there is accountability (which includes the threat of litigation).

Thinking broader, disclosure and apology may never fully take root in military medicine unless soldiers and their families have the same access to the courts as the rest of us. Even broader, soldiers and sailors fight and die daily for our freedoms, including the right to go to court, but our service members cannot partake in these rights when they come home?

And fairness to me with this issue is a soldier should not have to battle terrorists in Afghanistan, Iraq, or wherever they are stationed only to come home and have a lawyer hang the Feres doctrine over their head.

Politicians from both parties love to talk about supporting the troops. To me, this issue is a slam dunk....not only is the right thing to do, but, just like civilian healthcare, disclosure and apology will save money in the long run for military medicine. Perhaps this is an issue for President Obama to address in the closing days of his administration -- as we wrote in this post in May 2015 -- and it also should be an issue for Clinton and Trump to address on the campaign trail this fall.

 

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