Vet Congressional Testimony Speeds Medical Malpractice Fix

Washington, DCMany readers know the story of U.S. Army Specialist (Ret.) Dez Del Barba whose strep infection was mistreated by military medical professionals. It morphed into necrotizing fasciitis and cost him a leg, his career and nearly his life. A penicillin shot would likely have prevented this.

Fewer are aware of recent changes in the way the Department of Defense (DOD) calculates payments made in some veterans medical malpractice cases. Removing an offset of other compensation can increase payments for injured soldiers.

The link between the two tales is the story of heroic persistence on the part of Del Barba and his family. “It wasn't until the family brought this issue to the forefront that we were able to advocate on behalf of the entire military to remove the offset,” said Secretary of the Army Christine Wormuth. 

Medical missteps

Things began to go badly for Del Barba early on in his intended military career. Earl in basic training, he developed a Streptococcus A infection. He was seen, but not properly treated, by several military medical providers. His strep infection became necrotizing fasciitis, a rare flesh-eating disease.

On February 11, 2019, Del Barba was transferred to the ICU at Piedmont Hospital in Columbus, Georgia, where the medical team removed flesh, skin and muscle from his legs and body. On February 14, his left leg was amputated. Several more surgeries – a total of 43 -- followed. Del Barba remained in the Army until he was medically retired on August 17, 2021. 

Money? Money? What money?

By way of background, service members who are the victims of veterans medical malpractice face nearly insurmountable barriers to financial recovery.

The Federal Tort Claims Act allows individuals to take legal action against the federal government for negligence to its employees. However, the law leaves out “claims arising out of the combatant activities of the military … during time of war.” In its Feres v. US decision in 1950, the Supreme Court expanded the interpretation of the statute to include injuries that are “incident to service,” a broad description that has come to encompass nearly everything in military life.

The Feres doctrine has come under increasing criticism. A petition for certiorari is currently pending before the U. S. Supreme Court in Carter v. U.S.  Amicus (or “friend of the court”) briefs were recently filed by a veterans group, Coalition of Heros and the Whistleblower Law Firm, among others. To date, the Court has yet to grant review.

For those veterans medical malpractice lawsuits that do manage to slip through the Feres net, the financial recovery is never certain and may, in fact, be quite small. The military services approve only 2-3 percent of claims filed.

Of that 2-3 percent, many ultimately yielded little to no financial recovery for veterans. Until May 10, all payments to service members from the DOD and the VA were offset against the total claim amount. Now, claimants can receive the full amount of non-economic damages, which include pain and suffering, physical discomfort, and loss of enjoyment of life.

It may seem like only a small remedy to a great injustice. Nonetheless, it is a step in the right direction for soldiers injured through military medical neglect. This takes us back to U.S. Army Specialist Del Barba.

One man’s misery turns into a better life for others

On March 30, 2022, five months after his retirement, Del Barba testified before the House Committee on Armed Services Subcommittee on Military Personnel. Exhibit D sets out a timeline of the pain and bureaucratic run around in which he and his family found themselves trapped.

Two entries from August 17, 2021 and August 19, 2021 (abbreviated) follow:

“August 17 2021: Dez is official Medically discharge and Medically retired from the US Army. On this day Dez also lost his Tri-Care benefits. He was not educated on the importance of having Medicare in order for Tri-Care benefits to continue. Dez’s follow up care appointment had to be cancelled at UCSF. Dez reached out to the VA for help, they coordinated referral to UCSF which took a few days. Another failure by the military when it comes to assisting wounded warriors on what to do for medical care information after being retired.

August 19 2021: [T]he Army conducted a thorough review of PFC Del Barba's clinical quality management. The Army also conducted a command investigation that determined PFC Del Barba was not denied access to medical care.”
In the face of Specialist Del Barba’s testimony and extensive documentation, the DOD blinked.

“In addition to Pfc. Del Barba’s resilience and focus on his own recovery, the most remarkable aspect of his story is how he championed this change for all service members,” explained Secretary Wormuth.