by Joe Wilhelm Jr.
Staff Writer
Two Jacksonville attorneys are working to give military personnel and their families the right to sue for medical malpractice or wrongful death, which they are denied, currently, under the Feres Doctrine.
Sean Cronin of Cronin & Maxwell and Bryan Gowdy of Mills Creed & Gowdy are both attorneys and veterans of the U.S. Navy, so it was an easy decision to take on a case with the purpose of restoring rights to military personnel.
“It struck home. Feres (Doctrine) treats service members differently and more unfavorably than civilians,” said Gowdy. “It strikes you. Usually you want to provide the service member with more benefits, this does the opposite.”
The U.S. Congress enacted the Federal Tort Claims Act in 1946. It is the statute by which the U.S. authorizes tort suits to be brought against itself, and according to the Congressional Research Service, “The statute makes the U.S. liable for injuries caused by the negligent or wrongful act or omission of any federal employee acting within the scope of his employment, in accordance with the law of the state where the act or omission occurred.”
Three major exceptions to this statute are listed in the Feres Doctrine, one of which prohibits suits by military personnel for injuries “incident” to service.
“This has nothing to do with the business of law,” said Cronin. “It has to do with changing the law and helping U.S. service members to get the proper medical service. We want the government to do the right thing with the people they are taking care of.”
Their case involves allegations of medical malpractice by members of the hospital at Naval Air Station Jacksonville. Nathan Hafterson was an active-duty member of the U.S. Navy admitted to the hospital and diagnosed with aspiration pneumonia, an inflammation of the lungs and the airways to the lungs; and low blood sugar. Hafterson was having trouble breathing, so doctors decided they needed to stick a tube down his throat to help him breathe. He was placed under anesthesia in order for this to happen. Hafterson then developed an immediate reaction to anesthetic agents, with symptoms similar to malignant hypothermia, which is a sometime life-threatening reaction to anesthetic agents, according to Cronin. The suit contends that the hospital failed to manage Hafterson’s malignant hypothermia and that caused his death. Hafterson’s parents and representatives of his estate have filed the suit.
The interesting part of this case is that Cronin and Gowdy expect the case to get dismissed by each court until, and if, it is accepted for review by the U.S. Supreme Court.
“In order to proceed with this case we have to get the Supreme Court to change the law,” said Cronin. “If not, the case is over.”
Changing the law may be just as difficult as getting the chance to present the case.
“The Supreme Court’s caseload has increased steadily to a current total of more than 10,000 cases on the docket per term. In 1960, only 2,313 cases were on the docket and in 1945, only 1,460. Plenary review, with oral arguments by attorneys, is granted in about 100 cases per term. Formal written opinions are delivered in 80 to 90 cases. Approximately 50 to 60 additional cases are disposed of without granting plenary review,” according to the U.S. Supreme Court.
There are two phases to a case submitted to the Supreme Court. The first is petition for certiorari, which is asking the court to accept review. This is the point that Cronin and Gowdy have reached in the case. The second phase involves presenting the “merits” to the Supreme Court.
The case began when Cronin was approached to represent the Haftersons, and he contacted Gowdy, who is Florida Bar Board Certified in Appellate law, to partner with him on the case.
“Why this case? Why now?” said Cronin. “I’ve seen some gross malpractice before and this case just spoke to me.”
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