Supreme Court to reconsider lawsuits against the military

McClatchy NewspapersJune 22, 2011 

WASHINGTON — Dean Patrick Witt died unnecessarily at an Air Force base in California seven years ago. Now, his name momentarily haunts the U.S. Supreme Court.

On Thursday, justices will consider the death of Dean Witt and its connection to the controversial legal doctrine that shields military personnel from lawsuits. Lawyers, loved ones and Pentagon officials alike are all coming to attention for the late Air Force staff sergeant.

"If the court chooses to re-examine this issue, thousands of service members would finally have the opportunity to have their day in court," said Laurie Higginbotham, an attorney for Witt's widow, Alexis.

The case called Witt v. United States challenges a 61-year-old rule that protects the federal government against lawsuits by military personnel injured on active duty. Those protected can include, as in Witt's case, military nurses and doctors who may have acted negligently.

The lawsuit immunity potentially saves the federal government from having to pay hundreds of millions of dollars annually. It avoids judges second-guessing military decisions. It is "woven into the fabric of the law," the Obama administration's chief lawyer says.

But sometimes, it also compels judges to lament their own rulings.

"A 25-year-old man who devoted his life to serving his country is dead through no fault of his own, and his widow cannot sue to recover for her loss," California-based U.S. District Judge John A. Mendez wrote in February 2009 when he reluctantly rejected a Witt family lawsuit.

The result, Mendez added, "can only be characterized as unfair and irrational." Nonetheless, Mendez concluded that until a higher court changes the rules, he had to turn away the claims of Witt's loved ones.

In the closed-door session Thursday, Supreme Court justices will decide whether to accept the Witt family's case and conduct a full hearing next term. The odds are against the family. The court accepts less than 5 percent of cases filed by attorneys; a decision should be made public Monday.

Still, some advocates insist the Dean Witt case offers a decent chance to render military officials financially liable for their mistakes.

"I'm hopeful," said attorney Allan S. Haley, who filed a legal brief for Veterans Equal Rights Protection Advocacy in support of the Witt family. "This is the first fully briefed petition on the (issue) in a long time."

In October 2003, Witt was at Travis Air Force Base northeast of the San Francisco Bay Area, preparing to move his wife and two young children from Utah. He began feeling severe pain in his lower right abdomen and went to the base's medical center, where doctors diagnosed him with acute appendicitis.

On Oct. 10, 2003, doctors operated successfully. Then, Witt began having difficulty breathing. He turned blue. A nurse mistakenly tried to use pediatric equipment to open his airway. It failed.

The nurse next found the right breathing tube, but placed it in Witt's esophagus rather than his trachea. For several crucial minutes, no oxygen reached Witt's brain. He entered into a persistent vegetative state and died on Jan. 9, 2004, after being disconnected from life support.

The supervising nurse subsequently admitted error and surrendered her license. If Witt were a civilian, his family probably would have a slam-dunk malpractice case.

But in a trio of 1950 cases, one involving an Army surgeon leaving a 30-inch towel inside a patient's abdomen, the Supreme Court specified that military personnel could not sue for injuries occurring "incident to service."

"Medical malpractice suits by active-duty service members also could substantially disrupt the military mission ... requiring the military to reallocate scarce resources away from compelling military needs," Acting Solicitor General Neal Katyal argued in a legal brief this year.

Katyal further noted that the Witt family already had received federal benefits: $250,000 from life insurance, a $100,000 death payment and tax-free monthly payments for Alexis Witt and her two children.

Separately, Witt is suing Prudential Insurance Co. for how the insurance money was handled.

Congress could change the rules, but it would be expensive. Legislation that would allow medical malpractice lawsuits by military personnel would result in an additional 750 lawsuits annually and cost the government an estimated $2.7 billion over 10 years, according to the Congressional Budget Office.

Haley acknowledged the potential costs, while insisting that the rules must change.

"It's not Congress's job to fix this," Haley said. "This is a judge-made problem, and it should be fixed by judges."

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