A recent settlement involving the Cleveland VA Hospital reminded me of the Feres doctrine, something I hadn’t thought about in more than a year. In May 2008, Robert Sanner had some belly pain following removal of a cancerous kidney. Sanner had to come back three times to the VA before a CT scan was performed in August, which revealed the presence of foreign bodies left from the cancer surgery. The following day, surgeons removed two 14 x 11 towels. Following the second surgery, Sanner developed an abdominal hernia, not terribly unusual under the circumstances, but requiring yet another surgery to repair. Sanner sued and just settled the case for $275,000. Had the same sequence of event happened while Sanner had been on active duty, he would not have gotten a dime, because of the Feres doctrine.
I’ve written about Feres before. Justice Robert Jackson wrote the infamous decision in 1950. Justice Jackson ruled that a man on active duty may not sue the military for negligence. No matter how incompetent a military doctor is, for example, a serviceman injured through negligence has no recourse. The Feres decision itself involved three personal injury lawsuits against the military, one of them a medical malpractice case in which an army surgeon left a 30 x 18 inch towel in a dogface’s belly.
A few months back, the Supreme Court had an opportunity to overturn Feres but decided to walk away. I’ve written about the Witt case previously. Witt was an airman who developed a simple case of appendicitis that would not normally challenge a first-year surgical resident assisted by a medical student and a couple of student nurses. Witt’s medical professionals, however, managed to kill him in a series of blunders so awful that even military investigators couldn’t find excuses for them. Every court his widow went to turned her down, based on Feres, and now even the Supreme Court has said no. There will be no justice for military negligence victims now until Congress repeals the Feres doctrine.
Every now and again I come across an article about a medical related lawsuit with an odd story behind it. Dr. Stacy Makhnevich is a dentist in Manhattan who is a part-time opera singer. (Hey, I’m not going to throw stones. I am a full-time lawyer and semi-retired doctor.) An ex-patient, Robert Lee, now a resident of Huntingtown, Maryland, recently sued Dr. Maknevich seeking class action status and alleging violation of copyright laws, among other things.
Lee apparently paid what he believes is an excessive fee out of pocket, but has been unable to obtain his medical records to submit to his insurer for reimbursement. Lee posted negative comments on Yelp and elsewhere about the coloratura.
According to the complaint, filed in Federal Court in the Southern District of New York (Manhattan,) Lee alleges that he was required to sign an agreement waiving any right to comment publicly on Maknevich’s services before she would treat him for his toothache. Moreover, Lee says the agreement assigned any copyrights of such writing to the coloratura (I can’t stop using this word. To understand why, read James M. Cain’s, “Mildred Pierce,” a non-mystery novel written by the renowned mystery novelist.) Under a copyright infringement theory, the coloratura began billing Lee $100 a day as long as his articles remained online. Dr. Makhnevich’s attorney also sent Lee an in terrorem letter threatening legal mayhem. Anyone wanting to read all the gruesome details of what happened should read the complaint at the link above. You won’t be disappointed.
Talk about things getting out of control! How in blazes did a common-place problem become a class-action lawsuit? After all, Mr. Lee believes he was overcharged and the dentist no doubt believes she charged a fair price. Sounds like the coloratura and her office staff need to learn how to handle disgruntled patients. It’s not very hard: You return phone calls, you help your patients file their insurance claims (or file the claims for them and increase your fees, if necessary, to cover the service) and don’t blow off complaints. A complainer must be considered a potential plaintiff. I know what I’m talking about: I’ve been a doctor for 40+ years and never once was sued for medical malpractice, let alone sued as a defendant in a class action.
Lee received a letter threatening litigation, got scared I’m guessing and ran to a lawyer. It might be more accurate to say the letter drove Lee into a lawyer’s office. I still don’t understand why this problem was not resolved without a lawsuit, but I don’t know all the facts and have more sense than to speculate. What I do know is that a lot of bad law gets made out of bad cases and I wouldn’t be surprised if the courts have a field day with this one.
Ever wonder how much money government would collect if taxes were voluntary? My guess is very little. But, if government is so good and so necessary, why wouldn’t people gladly pay for it? Why would so few part with even a nickel for all the supposed good government does?
I’m not going to repeat the now self-evident principles that have been logically deduced from undeniably true premises and written down by Mises and the Austrian economists. I’m merely going to lament, which sounds better than whine.
As a trial lawyer, I wade in government muck every day. The civil justice system is government’s way of dealing with ordinary noncriminal disputes between people. The civil justice system doesn’t work because nothing about it is voluntary: Defendants are commanded into a lawsuit by subpoena, i.e., the government orders them into the lawsuit, at the point of a gun, if necessary. The jurors are similarly subpoenaed into the jury pool. And, the judge is paid by taxpayers, which means that few would contribute to his salary unless forced to. The party that prevails in a lawsuit is too often made to feel like crime pays and the party that loses feels like he was swindled.
The criminal justice system is even worse. Prosecutors routinely hide exculpatory evidence from the accused and are infrequently punished if caught. Mike Nifong was a rare exception to the general rule because the story sounded fishy from the beginning and every news organization in the world was watching him. In the more typical case, nobody is watching or gives a damn and if the prosecutor gets caught by dumb luck, it is a rare judge or bar that will punish him. Even when a genuine criminal is convicted, what does the victim get, other than vengeance at seeing his victimizer locked up? Real restitution to the victim is uncommon.
I am appalled by people who say, “America has the best justice system in the world; if you know of a better one, then go there to practice law.” The saddest part of this statement is that the premise may well be true: America may have the best justice system in the world. Our system may be the best available, but that doesn’t mean that justice is dispensed very often. Some people are willing to settle for an opportunity to get justice.
Is there any way to improve our justice system? Sure. The whole thing could be privatized. Much of the civil justice system is already privatized through arbitration and mediation, although the private system has the state system hanging over its head enough to nullify much of its functionality. Nonetheless, existing private law in the civil justice system is a step in the right direction.
The criminal justice system could also be privatized, but whenever I make this statement to another lawyer, he generally looks at me like I just got off a spaceship. That’s right, I believe that there very well could be competing private police forces, private judges and private penal systems that provide productive work, and in which the prisoner wouldn’t get out until his victim was made whole.
Is privatization of the justice system likely? Not unless attitudes change. The financial system may be approaching a point, however, in which attitudes could change rapidly about what government is genuinely capable of doing. I’ve got to admit that I expect more tyranny before I see more justice.
My daughter, Lauren, graduated law school this May, took the bar exam in July and has been waiting nervously until today for the results. She passed! Just as soon as she gets sworn in, she will be joining my law firm.
Like most people, I suppose, I first became aware of Geoffrey Feiger from the high profile cases of Dr. Kevorkian. I soon learned, however, that Feiger is as persuasive trying civil cases as he is with the criminal docket. And now, he’s just won an eye-popping $144 M in a tragic medical malpractice case. The trial lasted three weeks and the jury was out for three full days. Just imagine what the stress level must have been on the morning of jury-deliberation-day three for the central cast of characters.
Markell VanSlembrouck, now 15, was a 10-pound, 12-ounze baby—too big to be delivered through the birth canal. If an obstetrician suspects that a baby is this large before the delivery, he would plan a Cesarean section and might even do it electively, at the mother’s convenience, near the end of the pregnancy. Although the news stories give no specifics about what the doctors and nurses at the Beaumont Hospital in Royal Oak, Michigan did negligently, we do know Markell’s mom was allowed to go to term and a vaginal delivery performed with disastrous results. Markell had a brain hemorrhage and will need 24-hour-a-day care for the rest of her life. Beaumont Health Systems vows an appeal.
These cases are tricky and difficult to prove. Arguably the South’s most adroit medical malpractice lawyer recently wound up with a hung jury in want appears to be a very similar case here in Georgia. The central problem with a too-big-baby case is proving that the obstetrician knew or should have known that the baby was too big to make it through the birth canal. This burden of proof is a lot tougher than it sounds because even an ultrasound study is not as accurate as you might think in predicting whether a baby is too large to be delivered safely. The hospital typically gets dragged into the case because the obstetrical nurses who monitor the course of the mother’s labor fail to recognize the signs of fetal distress and notify the doctor in a timely manner. The problem is that the signs of fetal distress are not always clear cut.
I hope the best for Markell and I salute Geoffrey Feiger.
