Wednesday, Jul 30, 2014
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Service members, veterans deserve justice

Florida Voices
Published:   |   Updated: May 7, 2013 at 01:52 PM

While President Barack Obama's spokesman Jay Carney busily publicizes an upcoming White House dinner to honor service members who served in Iraq, the Obama administration is quietly seeking to deprive military families of the right to sue government doctors for malpractice.

The administration's unpublicized policy is coming up for judicial review in Jacksonville on Feb. 21 before U. S. District Judge Marcia Morales Howard. The government wants the judge to dismiss a malpractice claim because of a decades-old judicially created doctrine never passed or ratified by Congress.

The case stems from the care given Asenath German, an air traffic controller for the U.S. Navy who served in the Persian Gulf, Afghanistan and Iraq. In 2008, she went to the U.S. Naval Air Station Hospital in Jacksonville, complaining of a severe headache. Though no longer in active Navy service, she was treated as a dependent of her husband, Jimmy, a Navy aviation mechanic since 1992.

Naval hospital doctors told Mrs. German she was suffering a migraine and sent her home. It later was discovered that she had a brain aneurysm and hemorrhage, and subsequently, she had a stroke. In March 2010, she sued the federal government for medical malpractice. She died about nine months later, at age 48, her lawsuit still pending.

Jimmy German is continuing the litigation on behalf of himself, his wife's estate and their son. He claims the Naval hospital's medical staff negligently failed to order a CT scan, failed to perform a spinal tap and failed to consult a neurologist or neurosurgeon, steps that might have revealed what was going on and saved her life.

The federal government denies Mrs. German was the victim of malpractice. Robert O'Neill, the U.S. attorney for Jacksonville and an Obama appointee, is defending the government in court. His office is under Attorney General Eric Holder, a member of Obama's Cabinet.

The government's lawyers want the lawsuit dismissed before the malpractice allegations are even examined. They're asking Judge Howard to aggressively interpret a 62-year-old military-immunity principle known as the "Feres Doctrine." This judge-made rule of law is applied routinely to keep active-duty military personnel from suing military doctors for malpractice. It originated from a 1950 U.S. Supreme Court decision, interpreting the Federal Tort Claims Act, that concluded Congress never intended to allow military personnel to file negligence suits against the government.

To let the lawsuit proceed, the lawyers argue, "would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness."

While having their well-deserved dinner at the White House, those Iraq veterans should ask President Obama to direct U.S. Attorney O'Neill to let the German family's malpractice claim be heard.

That is what would happen if Asenath and Jimmy German had not served their country honorably in the Navy: They would have their day in court.


Angel Castillo Jr., a former reporter and editor for the New York Times and The Miami Herald, practices employment law in Miami. He can be reached at acastillo@floridavoices.com.
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