Judge calls military lawsuit ban 'unfair'

Calling it "unfair and irrational," a federal judge in California has urged the U.S. Supreme Court to reconsider a 58-year-old doctrine that bars active-duty members of the military from malpractice claims against military medical facilities.

In a five-page ruling filed Tuesday in Sacramento, U.S. District Judge John A. Mendez "reluctantly" dismissed the lawsuit filed by Alexis Witt, the widow of an Air Force staff sergeant who suffered permanent brain injuries due to a documented cascade of medical errors following a routine appendectomy.

"The alleged facts in the instant case are so egregious and the liability of the defendant seems so clear," Mendez wrote, that he gave serious consideration to Witt’s claim despite dozens of court rulings to the contrary.

In the 1950 decision that has become known as the Feres Doctrine, the court concluded that active-duty members of the military are barred from filing claims for wrongful death or injury resulting from negligence, including malpractice in military health facilities.

Courts have cited as justification the need to maintain discipline and to protect the military from costly and protracted litigation. The ruling cites the availability of both military and veterans health benefits for current and former service members.

The ban, as the Witts’ attorneys pointed out, does not apply to military dependents. In filings in the case, her lawyers said that if the same mistakes had been made on Alexis Witt, a claim would be allowed.

Dean Witt, then 25, was transferring from duty in Utah to Travis Air Force Base in California in early October 2003 when he collapsed, ending up in a Travis operating room for an emergency appendectomy. According to court records, the surgery went fine, but a series of medical errors occurred immediately afterwards.

According to reports filed in the case, "the post operative care provided to Dean Witt is a travesty and far below the standard of care." The nurse anesthetist subsequently had her license revoked, records show.

The report states Witt was improperly given a powerful drug following the surgery and then left in the care of a student nurse. When he stopped breathing he was quickly wheeled into a pediatric recovery area where attempts to resuscitate him with pediatric equipment failed as did an initial attempt at intubation.

According to the complaint, Witt was without oxygen for seven to 10 minutes, suffering permanent brain injury. Records show he was removed from life support in early January 2004 and died shortly afterwards. In addition to his wife he left two young children.

"A 25-year-old man who devoted his life to serving his country is dead through no fault of his own, and his widow cannot sue to recover for her loss," the judge wrote. "However, as wrong-headed as it may seem to be," Mendez concluded that he had no choice under Feres and subsequent cases but to dismiss the claim.

Laurie Higginbotham of Austin, the Witts’ attorney, said she was not surprised by the dismissal and was pleased with the wording of the ruling. An appeal is being prepared. The U.S. Attorney’s office in Sacramento, which handled the case for the Air Force, declined comment.

Walter F. Roche Jr. can be reached at [email protected] or 412-320-7894.