Feres Doctrine

[ANSohschm]

There is a news article circulating detailing a soldier's fight to draw attention / try to eliminate to the Feres doctrine: Soldier with cancer says medical mistake will cost his life

Current and former military MDs, any opinions on the Feres doctrine? Thoughts on how messy it would be to make adjustments to it? I am trying to understand this issue better and figured this would be a great place to get some firsthand feedback.

Thanks.

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[HighPriest]

Firstly, the military can decide to punish the physician if a medical mistake was made. And they do investigate this sort of thing frequently. And they do hand out punishments. Allowing a punitive cash suit doesn't actually cure this guy's cancer. So if the goal is to mitigate risk, then there is a system in place to do that. If the goal is to provide the soldier's family compensation then there is actually a system in place to provide for that as well since he's (presumably) on active duty. If the goal is to bring attention to the issue, then mission already accomplished. On one hand, I do believe that true negligence or malpractice should be handled with a fairly stiff boot. On the other hand, as we all know, medical lawsuits are frequently frivolous, a huge expense to the medical system, and effect the way medicine is practiced in the civilian world (often not to the benefit of the patient). If you rip off that bandaid, you'll bring all the bad associated with it into the military system. On the civilian side, some of it is definitely necessary in order to allow an avenue of recompense and to ensure that truly negligent people are punished or removed from their positions. (Even though just as often or more often they're used as a cash grab). But the military already has a way of dealing with this, internally, that doesn't involve a lawsuit.

Now, if you want to argue that the military isn't appropriately managing these mistakes that's a different question and up for debate. Maybe they're too lenient. I can tell you from experience that the very nature of military medicine makes it predisposed to retaining people who often don't work as hard, don't pay as much attention, and don't stay as up to date as their civilian counterparts. That's not saying military docs are bad. On the contrary, I find most military docs (surgeons especially because that's what I'm most familiar with) to be as good or better than their civilian counterparts as they come out of training. But the longer you're in, the worse your skillset gets and the system encourages that.

The other issue has to do with who he's going to sue. Apparently he saw a number of physicians and this wasn't caught. So is he suing each doctor? The hospital? The federal government? Maybe all of those. So that's not just an adjustment to the law, it's an elimination. If they got some kind of imaging and missed a tumor, that's negligence. If they didn't get any imaging on a guy coughing up blood, that's also negligent. But, there's always the chance this would have been missed by anyone right up until the point it was caught. Hard to say for sure without seeing a record.

 

[HighPriest]

And of course the attorneys want to get rid of the Feres doctrine.

I got a dog. He loves to eat. It's his favorite thing in the world. Anything he can get in to, he'll eat. He'll eat until he's gorged himself and then he'll eat some more. But, his food stays locked in a plastic bin. he can't get to it. He can see it, and he knows there's food in it, but it's locked tight.

If he had the chance to sue to open that bin, he'd do it in a heartbeat.

 

[buffdoc]

The Feres doctrine is misunderstood. The idea that soldiers and other beneficiaries don't have any recourse to remedy medical malpractice in the military system is a myth (perpetuated by the referenced article). Every hospital that I have worked at have a risk management department and a hospital attorney. These departments are constantly responding to inquiry requests (fishing expeditions) from civilian attorneys and also respond when a sentinel event occurs. The civilian attorneys understand that they cannot sue the military physicians for monetary damages, but they can and certainly do sue the federal government. When they sue the federal government, the suit lists all of the doctors who were even remotely related to the case. The only benefit that this provides to military physicians is that, unlike in the civilian world, the government will aggressively defend the case if it defendable.

When these events occur, or when they might occur, it is routine to have a medical case review board composed of peers (other physicians) who vote to determine if standard of care was met or not met. These boards are confidential, but the attorneys rely on them heavily. If it determined that the standard of care was not met, my guess is that the attorneys will settle with the plaintiff. Further, there are a myriad of remedies to be sought if standard of care was not met, or how egregious the offense was. They also rely on routine and frequent peer reviews, chart reviews, continuing education, etc. From my experience, Army medicine is hyper vigilant to ensure quality and safe care. Also, it has been my experience that is usually the civilian contractor doctors who are put into abeyance or have their privileges revoked.

 

[Perrotfish]

The Feres doctrine is misunderstood. The idea that soldiers and other beneficiaries don't have any recourse to remedy medical malpractice in the military system is a myth (perpetuated by the referenced article). Every hospital that I have worked at have a risk management department and a hospital attorney. These departments are constantly responding to inquiry requests (fishing expeditions) from civilian attorneys and also respond when a sentinel event occurs. The civilian attorneys understand that they cannot sue the military physicians for monetary damages, but they can and certainly do sue the federal government. When they sue the federal government, the suit lists all of the doctors who were even remotely related to the case. The only benefit that this provides to military physicians is that, unlike in the civilian world, the government will aggressively defend the case if it defendable.

I think you are confusing two different things. The Feres doctrine says that active duty can't sue. Period. No matter how egregious the medical error an active duty member can't sue. They can't sue the doctor. They can't sue the government.

Dependents CAN sue, though a separate act allows the government to substitute the government as the defendant in place of the physician. That's why military physicians don't carry malpractice insurance, because if they're sued the government becomes the defendant.

 

[HighPriest]

The Feres doctrine is misunderstood. The idea that soldiers and other beneficiaries don't have any recourse to remedy medical malpractice in the military system is a myth (perpetuated by the referenced article). Every hospital that I have worked at have a risk management department and a hospital attorney. These departments are constantly responding to inquiry requests (fishing expeditions) from civilian attorneys and also respond when a sentinel event occurs. The civilian attorneys understand that they cannot sue the military physicians for monetary damages, but they can and certainly do sue the federal government. When they sue the federal government, the suit lists all of the doctors who were even remotely related to the case. The only benefit that this provides to military physicians is that, unlike in the civilian world, the government will aggressively defend the case if it defendable.

When these events occur, or when they might occur, it is routine to have a medical case review board composed of peers (other physicians) who vote to determine if standard of care was met or not met. These boards are confidential, but the attorneys rely on them heavily. If it determined that the standard of care was not met, my guess is that the attorneys will settle with the plaintiff. Further, there are a myriad of remedies to be sought if standard of care was not met, or how egregious the offense was. They also rely on routine and frequent peer reviews, chart reviews, continuing education, etc. From my experience, Army medicine is hyper vigilant to ensure quality and safe care. Also, it has been my experience that is usually the civilian contractor doctors who are put into abeyance or have their privileges revoked.

Groovy

 

[Gastrapathy]

I’m really conflicted. The disability from the VA is a pittance compared to the loss that can occur with malpractice in milmed. But, lawsuits wouldn’t fix that. If you got rid of Feres, every fitness for duty decision could end up being litigated. I think I’d leave it as is but I’m glad I’m out and can pay for real disability insurance so if a doctor jacks me up, I’ll still be able to support my family.

 

[ArmyTiger]

Has anyone here heard of a CT scan being part of the routine screening for any military school? This whole story seems weird, and not like something that'd be picked up by any routine civilian care, let alone screening for a special ops super soldier.

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[dwb8p]

The initial CT had to be prompted by either symptoms or an xray finding. Screening CXR's are routinely performed, but there's no such thing as a screening CT for an asymptomatic soldier headed to a military school. For those curious, this news story shows the initial and f/u CT images depicting the mediastinal mass. North Carolina Green Beret fighting cancer, government, over medical mistake . Both CTs are noncontrast, btw. It is definitely an abnormality that should have been picked up on the original (nonspecific mass vs lymph node), but I can see how someone might walk by it on the initial study if it was an isolated lesion (without an actual primary lung mass or other adenopathy). I will also add that my understanding is that it was a civilian contractor who actually (mis)interpreted the original study, not an active duty radiologist.

 

[colbgw02]

After reading that article, I’m reminded of how much I hate professional ‘expert’ plaintiffs’ witnesses. I’d like to thunderpunch the quoted radiologist in the brainstem. That guy went out of his way to publicly make inflammatory comments. Jackass.

 

[Crabbygas]

They could probably get rid of the Feres Doctrine in CONUS without making much difference. Dependents, retirees, civilians can all sue anyway. As for the system to deal with malpractice..... I hardly know what to say. When I was in that system was almost totally broken. There were guys who were terrible who were allowed to just keep on going for years. Sure the military gave great care, sometimes. And it did awful sometimes and those cases were frequently covered up. I'll never forget the M+M for a totally preventable death in the ICU.

Me: "I have the printout from the telemetry and it will show exactly why this guy died."

Medical Director: "Dr Crabbygas there is nothing to see on that telemetry. Case closed. Standard of care met."

 

[backrow]

Until they can provide care by independent practitioners in every location around the world in every instance where care is given they will not be able to remove Feres.

That would effectively end Independent Duty corpsmen, independent Duty Med techs, and medics providing care in anything but point of injury care.

We can debate how well that system works or doesn’t now, but until they can put a doc on every ship it won’t work for the Navy. (At least a total repeal anyway)


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[ANSohschm]

Thank you all for your insights and responses, I definitely feel like I understand why it is in place. Unfortunate story but interesting comments regarding the Feres doctrine.

 

[DD214_DOC]

I think a bigger problem is the military allowing PA's to practice without a license and the lack of enforcing the state licensing requirements for many NPs -- specifically, the common requirement for a written agreement with a supervising/"collaborative" physician. The haphazard credentialing and privileging process is also a problem (privileging a NP to see pediatric patients based upon having, "a couple classes on children and development", granting the NP equal ability to evaluate, diagnose, and treat kids as a subspecialty physician who required an additional two years of fellowship training to get privileges for), as is the passive acceptance of retaining clinicians who just ****ing suck at what they do and the nearly impossible possibility of firing them.