SCHUMER: OUR MEN AND WOMEN IN UNIFORM SHOULD NOT BE DENIED RESTITUTION IF THEY ARE THE VICTIMS OF NEGLIGENCE BY GOVERNMENT DOCTORS

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Today U.S. Senator Charles E. Schumer announced he is introducing the Carmelo Rodriguez Military Medical Accountability Act, which will give military servicemembers the right to pursue civil actions against the military for medical negligence experienced while receiving treatment for injuries unrelated to their service.  The legislation seeks to give servicemembers the right that all other citizens have to sue their doctors for medical malpractice.  The legislation was inspired by and named for Sgt Carmelo Rodriguez, a U.S. Marine who died from melanoma after a military physician failed to properly treat the disease in his initial medical checkup.  Rodriguez's family was left with no way to hold the military accountable for the medical malpractice. 

 

Currently soldiers are prevented from suing the military for malpractice by a precedent established by the Supreme Court's 1950 decision in Feres v. United States.  The doctrine holds that service members cannot sue the government under the Federal Tort Claims Act for injuries they incur "incident to their military service."  If a service member dies as a result of medical negligence by military doctors, his family is generally barred from suing on his behalf.  Schumer's legislation changes the law to allow service members to sue the military for negligence in treating peace time injuries.  The bill has been introduced in the House of Representatives by Rep. Maurice Hinchey.

 

"Members of our armed forces put their lives on the line every single day, and know and accept the risks they take," said Senator Schumer.  "But when something goes wrong while they are being treated for a injury or condition that doesn't come from their duties as a solider, they should have the same rights as any other person who seeks treatment from a doctor. This is a matter of justice, that is why I am introducing this legislation to extend the same rights that exist for civilian patients across the United States; the right to expect top notch treatment, and the right to press for restitution if our servicemembers are injured by a military doctor while receiving treatment for peacetime injuries incident to their service."

 

 Carmelo Rodriguez, a resident of New York, joined the Marine Corps in 1997.  During his medical entrance exam, a physician noted in Rodriguez's chart that he had a melanoma on his right buttock, but the physician did not inform Rodriguez of the melanoma.  Several times during Rodriguez's military service, military doctors misdiagnosed the melanoma as a birthmark or wart.  In 2006, a military physician referred Rodriguez to a dermatologist who diagnosed the lesion as malignant stage 3 melanoma.  By May 2006, Rodriguez had surgery to remove cancerous lymph nodes.  In January 2007, the cancer advanced to stage 4, forcing Rodriguez to medically retire in February 2007.  In November 2007, Rodriguez died at age 29.  Rodriguez's survivor, his son, is eligible for veterans' survivors' benefits, but the Feres doctrine bars Rodriguez's survivors from suing the military for malpractice.

 

The Carmelo Rodriguez Military Medical Accountability Act of 2009:

• Allows service members to sue the military for negligent provision of medical, dental or related health care, including clinical studies and investigations.
• Prevents payment of the malpractice claims from being offset by Servicemembers Life Insurance payments.
• Limits all FTCA suits to peacetime injuries by prohibiting any suits for injuries "arising out of the combatant activities of the Armed Forces during time of armed conflict."
• Makes the FTCA the exclusive remedy for suits alleging medical malpractice against a military health care provider.  The FTCA permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States.