Widower takes the prohibition of claims for military injuries before the Supreme Court

Widower takes the prohibition of claims for military injuries before the Supreme Court https://i1.wp.com/www.eresviral.com/wp-content/uploads/2018/10/Widower-toma-la-prohibición-de-reclamaciones-por-lesiones-militares-ante-el-Tribunal-Supremo.jpg?fit=219%2C146&ssl=1

Widower takes the prohibition of claims for military injuries before the Supreme Court









This story is from Kaiser Health News

More than four years after Navy Lieutenant Rebekah Daniel bled to death within hours of delivery at a military hospital in Washington State, her husband still does not know exactly how, or why, it happened.

Walter Daniel, a former Coast Guard officer, demanded explanations from officials at the Bremerton Naval Hospital, where his wife, known as "Moani", died on March 9, 2014.

He says he has none. There are no results of a formal review of the incident, no details on how low risk pregnancy a HealthThe 33-year-old woman, a birth and delivery nurse, ended in tragedy, leaving her newborn daughter, Victoria, now 4 years old, without a mother.

"There was not a timeline, nor records of the steps taken," recalled Daniel, 39, sitting in his Seattle attorney's office last month. "I have not had answers."

Daniel, who now lives in Dublin, California, presented a unjust death lawsuit in 2015, but it was dismissed, as were subsequent appeals.

The dismissals were based not on the facts of the case but on what is known as the Feres doctrine, a 68-year-old federal ruling that prohibits active duty military officers from suing the federal government for injuries.



Heidi by Marco / KHN
Walter Daniel, a former Coast Guard officer, holds a photograph of his wife, Navy Lieutenant Rebekah Daniel, known as "Moani."

This week, Daniel is taking his search for answers to the Supreme Court of the United States.

Through his attorney, he asked the superior court on Thursday to amend the 1950 resolution, creating an exception that would allow service members to sue for medical malpractice in the same way as civilians.

The military health system, with 54 hospitals and 377 medical clinics, serves some 9.4 million beneficiaries, including almost 1.4 million members in active service.

"I do not want this to happen to any other family," said Daniel.

The Supreme Court has not considered the Feres doctrine in more than 30 years, since the 1987 case United States v. Johnson, where the judges resolved 5-4 to defend the ruling. That decision provoked a sharp dissent from Judge Antonin Scalia, who declared that the rule should be dismissed.

"Feres [v. United States] "It was wrongly decided and deserves sincerely the widespread and almost universal criticism it has received," Scalia wrote.



Heidi by Marco / KHN
Walter Daniel plays with his daughter Victoria near his apartment in Dublin, California, on September 27, 2018.

Since then, however, the court has refused to accept at least two petitions that would have allowed Feres to be reconsidered. And the possibilities are slim now. Of the 7,000 to 8,000 cases Presented to the Supreme Court each term, only about 80 are accepted.

But Daniel and his lawyer, Andrew Hoyal, of the Luvera law firm in Seattle, insist that the circumstances of Moani Daniel's death justify new scrutiny.

"We think that if we are ever going to try the Feres doctrine, this is the case to do it," Hoyal said. "It was a clear negligence. It was a horrible situation. And every civilian in the country could file a lawsuit to be held accountable, except for service members.

"She was treated differently because she had lieutenant bars."

Daniel questions the findings of a Navy autopsy that concluded that Rebekah Daniel died of "natural" causes possibly related to a amniotic fluid embolism, a rare and difficult complication to prove the birth.



Heidi by Marco / KHN
Walter Daniel, a former Coast Guard officer, filed a wrongful death lawsuit after his wife died after giving birth at a military hospital in 2015, but was dismissed due to a 68-year federal ruling.

Daniel says that his wife, who worked in the maternity unit where she gave birth to her baby, died of poor medical care that did not prevent bleeding in almost a third of the blood in her body.

"It was total chaos," he recalled. "I remember several towels and sponges as if they were trying to absorb the blood ... but it kept coming."

Doctors did not perform vital tests, used an obstetric balloon, a standard device used to stop postpartum hemorrhage, and to start massive blood transfusions until it's too late, court documents say.

Barely four hours after the birth of her 8-pound, 7-ounce daughter, Moani Daniel was dead.

"I was in shock," recalled Walter Daniel.

Capt. Jeffrey Bitterman, commander of the Bremerton Naval Hospital, said in an email that the circumstances of Moani Daniel's death were "thoroughly examined in a quality review process." The results of the review can not be disclosed publicly, he said, rejecting more comments for pending litigation.

However, in a Press release promoting the 5K "Aloha Moani" race organized in honor of Daniel, Navy officers said publicly that she died "due to a rare complication of childbirth."

Walter and Daniel Moani, who met in Hawaii, had been married almost a decade when she became pregnant in 2013. Moani Daniel had a son, Damien, now 19, from a previous marriage.

Moani Daniel loved her job, but she had submitted her resignation to the Navy months earlier and was scheduled to leave the service in April 2014. Walter Daniel had accepted a job in Northern California, where he had moved with Damien to be establish in school. .

The day after the death of his wife, Walter Daniel returned to his empty apartment.

"She had all these things for the baby set," he recalled. "I wonder: 'What the hell just happened?' It was like a nightmare. '"

The Feres doctrine holds that members in active service of the armed forces can not sue under the Federal Law of Grievance Claims for "incident to service". The judges wanted to ensure that Congress was not "loaded with private bills on behalf of military and naval personnel." . "

They reasoned then that the military provides comprehensive assistance for injuries or death of members of the service and their families, and that there is no parallel with private responsibility because the relationship between the government and its armed forces is different. Later, the court insisted that a major reason for prohibiting such trials is to maintain military discipline.

But the decision, particularly the definition of "incident to service", has been fiercely debated for years by academics and, at least twice, in bills before Congress.

However, the rule has been interpreted to include not only military service, but virtually any activity of an active service member, said Richard Custin, clinical professor of commercial law and ethics at the University of San Diego.

"It's very unfair," he said. "Labor is not a military activity. Clearly it is not an "incident to service".

Custin and other critics claim that the Feres doctrine strips the military of a constitutional right to seek redress for grievances, while also allowing hospitals and military doctors to escape scrutiny for negligent care.

Military hospitals reported 545 called sentinel events. - omissions or medical errors: from 2014 to 2017, according to the data of the Defense Health Agency. In 2014, the Bremerton Naval Hospital reported at least one case of postpartum haemorrhage or hysterectomy.

But such reports are not public, so Daniel does not know if his wife's case was included in those records. A 2014 review of military medical care. According to Hoyal, the rate of postpartum hemorrhage was consistently higher in military hospitals than in the national average.

"What they do in the field of medicine is no different from what civilian hospitals do and they should be kept to the same standards as civil hospitals and civilian doctors," Hoyal said.

Defense Department officials rejected requests for interviews related to the Feres ruling.

However, in an email, a spokeswoman for the agency said that nullifying the rule "would destroy the premise" of workers' compensation without guilt available in the military and elsewhere. It would also "create an untenable inequality" between military members authorized to sue and others, such as those wounded in combat, who could not.

And, instead of improving military medical care, annulling Feres "would compromise its effectiveness," the agency said, noting that "no medical system is perfect."

Custin, the law professor, said he sympathizes with Daniel, but is not optimistic that the court will see the case differently than other claims for medical malpractice.

"What this lawyer must do is to distinguish Daniel somehow from the long list of victims who have been defamed by Feres," he said.

Hoyal attempts to argue that the Supreme Court's judgments regarding Feres have been inconsistent and irreconcilable. In the decisions that followed Feres, the court rejected its own "parallel liability" argument, Hoyal said. And he has never ruled that medical decisions like those at stake in Daniel's case would undermine military discipline.

"In summary, the legal landscape has undergone a radical change since 1950," says Hoyal's request. "The earlier central theories for Feres no longer matter. The reasons not considered in Feres are now central. "

Such an argument could well influence an increasingly conservative Supreme Court that now includes judges loyal to Scalia's views, as well as progressives bent on supporting workers' rights, said Dwight Stirling, executive director of the Law Center. and Military Policy, an opinion of the Southern California tank.

"The Feres doctrine does not divide the members of the court in their standard ideological bases," he said. "It tends to stir the typical calculation".

Walter Daniel hopes so. After raising Victoria as a single father for four years, he left the Coast Guard, recently remarried and returned to college to study and become a high school teacher. Despite the fact that his life is moving forward, he said, he hopes that the case of Moani Daniel will provide justice for others.

"It's not about the Daniel family, it's about the thousands of service members around the world who are affected by this rule," he said. "That's what our fight is for."



KHN's coverage of women's health problems is supported in part by the David and Lucile Packard Foundation.



Kaiser Health News is a non-profit news service that covers health problems. It is an independent editorial program of the Kaiser Family Foundation, which is not affiliated with Kaiser Permanente.

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