Washington, D.C.If Attorney and former Navy lawyer Dean Swartz gets what he wants for his client Colonel Adele Connell, Swartz will have succeeded in shutting down a 59-year-old law known as the Feres Doctrine that makes it almost impossible for military personnel to sue for medical malpractice . "I never knew just how unfair this law was until I got on the other side of the issue," says Swartz.
Adele Connell is a retired army colonel with some 30 years of service, currently on recall to active duty. Last fall, she was diagnosed with left side invasive breast cancer and was scheduled to have a double mastectomy at Walter Reed Army Hospital in Washington, D.C.
The plan for surgery was this. Doctors were to remove the cancerous left breast and, as a prophylactic measure, they would also remove the right breast. They would also remove one lymph node next to the tumor near her left breast.
Despite what the chart read, and despite going over the mandatory checklist in the operating room, surgeons believed that the cancer was on the right side. Unable to find a cancerous tumor on the right side, the surgeon went ahead and removed 17 lymph nodes – none of which was affected by cancer. "This is the kind of error that is incomprehensible – how you can operate on the wrong side of someone's body?" asks Swartz incredulously.
In the civilian world, the case has all the hallmarks of a slam-dunk ""wrong side" medical malpractice suit, but if you are in the US military your course of action is seriously limited. So when Col. Connell stepped forward and filed a claim for $5 million in damages against the United States with the United States Army Claims Service, it was summarily denied.
The Army's swift rejection came as no surprise to Swartz, who is very familiar with the Feres Doctrine – the 1950 Supreme Court doctrine that turns up time and time again when military personal attempt to make claims for noncombat injuries resulting from negligence, including malpractice in military health facilities.
For several years, Swartz was a Judge Advocate General assigned to the highest office for the Navy in Washington DC that handles exactly these kinds of claims. "I had to enforce what the law was," says Swartz. "I didn't have a lot of choice, I didn't really like it but as a marine and Navy Judge Advocate General I was obligated to follow the law."
"Although Connell is now cancer free, the removal of the lymph nodes left her with a serious condition known as lymphedema," says Swartz. "She sufferers swelling and pain in her right arm. The absence of the lymph nodes makes her vulnerable to infections. This is not someone trying to make a buck – this is someone very seriously injured by a 'bone headed mistake'".
Swartz says his client also has suffered an emotional trauma. "Even as we speak today she suffers nightmares every night of having surgeons chasing her through the hospital with scalpels," says Swartz. "This is not some delicate flower; this is an army colonel with over 30 years of service.
Connell's story certainly isn't the first time a serious medical error has been alleged to have been made in a military hospital and left an injured GI denied compensation. As Swartz says, "it is outrageous that prisoners can sue for medical malpractice, but not the men and women in military service!"
The House Judiciary Committee is currently looking at a bill that promises to remedy the situation, but Swartz isn't content to wait for Washington lawmakers. He has filed a lawsuit in the Federal Court in the District of Columbia claiming that Connell's lead surgeon was a civilian, contracted by the US government and had no business supervising Army doctors.
The suit names the civilian doctor and the US government. Is this case headed
for the Supreme Court for another crack at the Feres doctrine? Attorney Dean Swartz sure hopes so.
Dean Swartz is a former Major in the United States Marine and was assigned to the Office of the Judge Advocate General in Washington DC from 1974 to 1978. He earned his undergraduate degree at Stanford (1971) and his J.D. at the University of Toledo College of Law (1974). Swartz is a partner at Swartz & Reed in Washington DC. One of the areas of practice is Military Medical Malpractice.