New York Law Blog

Last year, CBS News reported on Marine Sergeant Carmelo Rodriguez and his battle with the medical malpractice system in regards to the military. While serving in the Marines, Sgt. Rodriguez was misdiagnosed by military doctors, saying a malignant melanoma was actually just wart. Years later, Sgt. Rodriguez was medically discharged due to his cancer, and due to a little known law called the Feres Doctrine, Sgt. Rodriguez’s family cannot bring a medical malpractice case against the government.

Feres v. United States, 340 U.S. 135 (1950), is a case in which the Supreme Court of the United States ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. The opinion is an extension of the English common-law concept of sovereign immunity.

The practical effect is that the Feres doctrine effectively bars service members from successfully collecting damages for personal injuries, whether or not they were suffered in the performance of their duties. It also bars families of service members from filing wrongful death or loss of consortium actions when a service member is killed or injured.

The full CBS News report can be seen below. CBS reported earlier this year that the “Carmelo Rodriguez Military Malpractice and Injustice Act” is being introduced into Congress by New York state representative Maurice Hinchey.

Following up last week’s post on “never events” in regards to medical malpractice, here is the list of “28 errors that should never happen” from the National Quality Forum. The NPQ is a nonprofit health care safety agency, and this list represents “never events”, or avoidable errors.

1. Surgery on the wrong body part.
2. Surgery on the wrong patient.
3. Wrong surgical procedure performed on a patient.
4. Object left in patient after surgery.
5. Death of patient who had been generally healthy during or immediately after surgery for a localized problem.
6. Patient death or serious disability associated with the use of contaminated drugs, devices or biologics.
7. Patient death or serious disability associated with the misuse or malfunction of a device.
8. Patient death or serious disability associated with intravascular air embolism.
9. Infant discharged to wrong person.
10. Patient death or serious disability associated with patient disappearing for more than four hours.
11. Patient suicide or attempted suicide resulting in serious disability.
12. Patient death or serious disability associated with a medication error.
13. Patient death or serious disability associated with transfusion of blood or blood product of the wrong type.
14. Maternal death or serious disability associated with labor or delivery in a low-risk pregnancy.
15. Patient death or serious disability associated with the onset of hypoglycemia, a drop in blood sugar.
16. Death or serious disability associated with failure to identify and treat hyperbilirubinemia, a blood abnormality, in newborns.
17. Severe pressure ulcers acquired in the hospital.
18. Patient death or serious disability due to spinal manipulative therapy.
19. Patient death or serious disability associated with an electric shock.
20. Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances.
21. Patient death or serious disability associated with a burn in the hospital.
22. Patient death associated with a fall suffered in the hospital.
23. Patient death or serious disability associated with the use of restraints or bedrails.
24. Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist or other licensed healthcare provider.
25. Abduction of a patient.
26. Sexual assault on a patient.
27. Death or significant injury of a patient or staff member resulting from a physical assault in the hospital.
28. Artificial insemination with the wrong donor sperm or donor egg.

Are doctors prescribing certain narcotics without fully understanding them? As popular pain medication OxyContin became too expensive for insurance companies to pay for, doctors turned to Methadone, which was previously used to rehab heroin addicts. For some it is working, for others it leads to death. Many doctors are not familiar with the drug, and are prescribing it in too high of a dose, as well as not advising their patients on how to properly use the drug.

A synthetic form of opium, it is cheap and long lasting, a powerful pain reliever that has helped millions. But because it is also abused by thrill seekers and badly prescribed by doctors unfamiliar with its risks, methadone is now the fastest growing cause of narcotic deaths. It is implicated in more than twice as many deaths as heroin, and is rivaling or surpassing the tolls of painkillers like OxyContin and Vicodin.

“This is a wonderful medicine used appropriately, but an unforgiving medicine used inappropriately,” said Dr. Howard A. Heit, a pain specialist at Georgetown University. “Many legitimate patients, following the direction of the doctor, have run into trouble with methadone, including death.”

Issues with this particular drug run deep, especially with the Food and Drug Administration. The FDA actually had the drug listed in “dangerously high dosages” within Methadone packaging until the last quarter of 2006. It took an increase in deaths for the FDA to examine the recommended doses in drug packaging, and now the organization is considering calling for doctors who are going to prescribe the drug to take a special class on the matter to prevent errors and medical malpractice issues.

Tony Davis, a contractor in Victorville, Calif., had just turned 38 in 2004 when, after years of migraines and back pain, he saw a new pain doctor in his Kaiser Foundation Health Plan. The doctor, who had already given him the sedative Xanax, prescribed methadone because of his continued pain.

The second day on the two medications, Mr. Davis said, “I’m feeling really weird,’ ” recalled his wife, Pebbles Davis. The two lay down for a nap and when she woke up, her husband was dead.

Ms. Davis recalled that the coroner had told her, “Given the medicines he was on, his brain forgot to tell his heart to beat and his lungs to pump.” The case went to an arbitrator, who ruled that although Mr. Davis had overused his drugs in the past, the doctor had failed to warn him about the new risks of starting methadone together with Xanax and that the care was substandard. Ms. Davis was awarded more than $500,000. “I never had any idea of the risk nor did my husband,” she said.

The drug may be misunderstood, with the general population believing that any narcotic death would be attributed to patient misuse, but that may indeed not be the case:

As early as 2003, alarmed by the rise in methadone-related deaths, the Substance Abuse and Mental Health Services Administration made an urgent call for more systematic and detailed state and national reporting about opioid deaths — a call that still goes unanswered.

Misuse by abusers was first seen as the problem, but now, said Dr. H. Westley Clark, director of the Center for Substance Abuse Treatment of SAMHSA, “We know that a significant share of the methadone deaths involve doctors making well-intended prescriptions.”

To see a video story on this subject, visit the New York Times video section.