Senate Bill Introduced to Restore Rights of Injured Servicemembers

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For Immediate Release: June 25, 2009

Contact: Ray De Lorenzi
202-965-3500, ext. 369
media.replies@justice.org

Senate Bill Introduced to Restore Rights of Injured Servicemembers

U.S. Army Colonel harmed by medical negligence to file case today, but recourse unlikely without Carmelo Rodriguez Military Medical Accountability Act

Washington, DC—The legal rights of servicemembers injured by medical negligence would be restored under legislation introduced yesterday in the U.S. Senate.

A 1950 U.S. Supreme Court ruling in Feres v. United States prevents servicemembers on active duty from holding the government accountable for non-combat related injuries.  This decision strips military families of their right to seek redress through our civil justice system.  The Carmelo Rodriguez Military Medical Accountability Act (S. 1347 / H.R. 1478), sponsored by Sen. Charles Schumer (D-NY) and Rep. Maurice Hinchey (D-NY), would offer servicemembers injured by medical negligence the same protections currently provided to veterans.

“Members of the armed forces have made countless sacrifices to defend our country, and at the very least, deserve some legal protections when injured by medical negligence,” said Les Weisbrod, President of American Association for Justice.  “The Carmelo Rodriguez Military Medical Accountability Act will correct the unfair double standard that treats our nation’s military families as second-class citizens.”

The bill would help service members like Colonel Adele Connell of Stansbury, Utah, who has served in the U.S. Army for more than 32 years and underwent breast cancer surgery at Walter Reed Army Medical in December 2008.  Col. Connell was diagnosed with breast cancer in her left breast in November 2008.  Because of the risk of future breast cancer, the pre-op plan was to perform a therapeutic mastectomy (surgical removal of the breast) on the left breast and a prophylactic (preventative) mastectomy on the right, with sentinel lymph node biopsies on both sides (a diagnostic procedure involving the removal of a single lymph node on each side to determine whether the breast cancer had spread from the primary tumor).

The Walter Reed medical records show the attending surgeon (a civilian who is a former Army Colonel), along with other Army surgeons, removed the lymph nodes from the wrong side of the Colonel’s body.  The Operative Report reveals that the surgeons learned of their mistake only when they spoke with the patient’s daughter after the mastectomies had been carried out.  The “wrong- sided” surgery has left Col. Connell with lymphedema, which is characterized by swelling and constant tingling, burning, and sharp pains in her right arm.  She also suffers from Post Traumatic Stress Disorder and has experienced nightmares about the surgery almost daily.

Col. Connell’s attorney is expected to file a civil complaint today under the Federal Tort Claims Act in U.S. District Court for the District of Columbia.  The Army has made clear that it intends to rely upon the Feres doctrine to deny her relief and has already denied the administrative claim filed with the U.S. Army Claims Service.

“The Feres doctrine does not help or support our Soldiers or our military families.  To ask us to fight and die for freedom and then take away our right to ask questions, get records, face those who wrong us, and get help for our families to support us once we are disabled by the military ― is a disgrace,” said Col. Connell in a letter to the House Judiciary Committee.

Col. Connell and her attorney, Dean Swartz of Swartz & Reed, LLP in Washington, DC, are available to speak about the Feres doctrine and how this bill will help her obtain legal recourse.  Please contact Ray De Lorenzi at AAJ for more information.

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.

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