In 1950, the United States Supreme Court in Feres v. The United States, 340 U.S. 135 (1950) held that a soldier could not bring a claim against the United States for injuries incurred while he was in military service. In the recent case of Drabick, M.. v. Kathleen Sebelius et al.,1:10 CV 1841 a U.S. District Court in the Middle District of Pennsylvania held that a former military medical doctor and Colonel, Ret. in the Hematology-Oncology department of Walter Reed Army Medical Center could not bring a Section 1983 Civil Rights Claim against the government resulting from an allegedly inappropriate report of a medical malpractice claim to the National Practitioner Data Bank under the Healthcare Quality Improvement Act of 1986 under the Feres Doctrine.
Dr. Drabick approved an order for chemotherapy on an Army dentist who was suffering from a Stage III Colorectal cancer. His order contained a mathematical error that increased the dosage of Fluorouracil by 18% over the proper dosage. A pharmacist, checking the dosage, noted the error and reported it to a Dr. Daniels who actually order an increased dosage. The dentist died shortly thereafter after suffering from symptoms consistent with severe toxicity.
The dentist’s family sued the Army and settled for $1million dollars. Dr. Drabick was not named in the suit and took umbrage when the Army decided that it was required under federal law to report the malpractice settlement to the National Practitioner Data Bank. Dr. Drabnick sued everyone in sight including the Army, the Data Bank and Secretary Sebelius, who gets sued a lot these days. The Court dismissed all of Dr. Drabnick’s Civil Rights Claims and all of his Administrative Procedure claims. It is clear that Dr. Drabnick’s failure to pick up on the math error was below the standard of practice, although it is not clear that his error led to the harm to the patient. In any event, he is in the bank.
Every time I see a post on the Feres Doctrine, it makes the hairs on the back of my neck stand up. I should know because I have been down that same road too already. I even went to federal court in attempt to defend my case. Be aware that Feres also protects the US military from legal malpractice.
While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.
When I asked the top lawyer (now Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar.
It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald got promoted to Major. Feres was NEVER designed 60 years ago to protect against torts, corruption, misdeeds, and cover-ups by US Army lawyers. Today it protects against everything.
Posted by: Jeffrey Ziegler | 08/26/2012 at 08:03 PM