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Taking medical malpractice case to the supreme court to seek justice and challenge the Feres Doctrine

This morning the U.S. Supreme Court denied our client Walter Daniel’s petition challenging the Feres doctrine, which bars military servicemembers from seeking legal justice against the federal government. Justice Ginsburg indicated she would have granted the petition to hear the case, and Justice Thomas issued a dissent to the denial, which is available here on page 8.

While the outcome is disappointing, we are proud of the progress that our partner Andy Hoyal and Walt made in garnering the court’s consideration and shedding light on this important issue for servicemembers and their families. Below are their statements on the court’s decision, and you’ll find more about this story from Kaiser Health NewsNewsweekMilitary Times and Task & Purpose, among other outlets.

Statement from Luvera Law Firm’s Andrew Hoyal, attorney for Walter Daniel:

“The United States Supreme Court missed a clear opportunity to reexamine Feres, especially considering the sea change that has occurred since the court last addressed its bearing on medical malpractice cases seven decades ago. The legal underpinnings supporting this doctrine have eroded and shifted. The mission and nature of the Military Health System itself has been completely transformed. Our military personnel live and serve in a completely different world than when Feres was adopted, and it’s tragic that their legal rights have failed to keep pace.

“Walt and Victoria deserve the answers that are only accessible through our justice system. Moani deserves the honor and respect of a complete accounting for her tragic death. Military servicemembers and families everywhere deserve the right to pursue legal claims for medical malpractice and to hold the federal government and Military Health System accountable for patient safety.

“We’re clearly disappointed we won’t have the opportunity to argue this case before the Supreme Court, but we’re thankful that Justice Thomas recognized the injustice of Feres in his dissent, and that Justice Ginsburg would have granted our petition. We knew from the beginning that this would be a long journey with even longer odds, but we’re proud of the progress we’ve made and the light we’ve shed on this issue. We will continue to support legislators and military and legal advocates to pursue a legislative solution.”

Statement from Walter Daniel:

“Sadly, the justice system remains closed to our family, our colleagues and the families who commit their lives to military service. Victoria and I won’t have the opportunity to learn what led to Moani’s death, and to ensure others don’t experience the same tragedy.

“The bright note I will share with Victoria is that her mother inspired our good fight and inspired so many others as well. I’ve heard from hundreds of servicemembers and their families cheering us on and sharing what the promise of our efforts would mean to them and their ability to seek answers through the justice system.

“Our case and our fight is over – but it continues for other servicemembers. Moani’s story has generated a groundswell of momentum to correct the injustice of Feres, and now this issue is going all the way to Capitol Hill. I support the efforts of legislators, military and veterans’ organizations, and others who are committed to revising our laws to give servicemembers the rights they deserve.”

Original Post October 11, 2018

We are taking our client Walter Daniel’s medical malpractice case to the United States Supreme Court to challenge the Feres doctrine and seek justice for his family, after his wife Rebekah Daniel died from hemorrhaging following childbirth at Naval Hospital Bremerton in 2014.

With this case, we are also fighting for the rights of all service members who have been unjustly barred from medical malpractice claims by the Feres doctrine.

Photo source: Heidi de Marco for Kaiser Health News.

As our attorney Andrew Hoyal said: “When Walter first told us what happened to his wife Rebekah, we knew that if there was ever a case to challenge the injustice of the Feres doctrine, this was it. By going to battle for Rebekah and Walter, we’re fighting for all service members to protect their legal rights and hold the federal government and the Military Health System accountable for patient safety.”

You can learn more in these Huffington PostNBC NewsABC NewsSeattle TimesKaiser Health NewsKitsap SunFindLawMilitary.com and Stars and Stripes articles, and in the full press release below.

Stay tuned to our website for ongoing updates and media coverage as the case unfolds.

Widower Files Supreme Court Petition to Challenge Widely Criticized Doctrine Barring Military Servicemembers from Pursuing Medical Malpractice Cases, According to Luvera Law Firm

Bremerton, Wash. and Washington, D.C. – Today Walter Daniel filed a petition with the United States Supreme Court for the right to proceed with a medical malpractice lawsuit on behalf of his wife, Rebekah Daniel, who died after she hemorrhaged following childbirth at Naval Hospital Bremerton in 2014.

If heard by the Supreme Court, the case may have broad implications to restore legal rights to military servicemembers across the United States by challenging a portion of the Feres doctrine, which bars members of the armed forces from suing the federal government. The doctrine has prevented Rebekah Daniel’s family from pursuing a legal claim against the military hospital because she was an active-duty Navy lieutenant when she died.

“When Walter first told us what happened to his wife Rebekah, we knew that if there was ever a case to challenge the injustice of the Feres doctrine, this was it,” said Andrew Hoyal of Luvera Law Firm, the attorney for the Daniel family. “By going to battle for Rebekah and Walter, we’re fighting for all service members to protect their legal rights and hold the federal government and the Military Health System accountable for patient safety.”

In 2015, Daniel’s family filed a wrongful death case against the United States – a critical step in using the legal system to uncover the decisions and actions that may have led to a breakdown in patient safety, and to protect their rights to hold the military medical provider accountable.

The district court immediately dismissed the case. A 9th U.S. Circuit Court of Appeals panel upheld the dismissal – but in a remarkable opinion, noted the potential for this case to challenge the widely criticized Feres doctrine.

“We expected the appeals court panel of judges to rule against us – the Feres doctrine prohibiting medical malpractice cases is rock solid in the 9th Circuit,” Hoyal said. “However, we hoped that the panel would use its opinion to invite further consideration by higher courts, and it certainly did. It is rare for a court to describe its own case law as defying ‘reconciliation,’ or to expressly voice its dissatisfaction with the result it reached.”

Now, the family and their attorney are fighting all the way to the Supreme Court, which has the power to take a fresh look at the precedent and to allow medical malpractice cases like the Daniels’ to proceed. Notably, the Daniel petition seeks to challenge Feres only as it applies to medical malpractice cases in non-battlefield situations.

The Feres doctrine stems from a 1950 Supreme Court decision in Feres v. United States, which held that under the Federal Tort Claims Act, the United States is not liable for injuries to members of the armed forces sustained while on active duty. Since then, the lower federal courts have interpreted the Feres bar broadly to preclude legal action against the government for a wide range of activities – from medical errors to sexual violence – unrelated to battlefield or combat activities.

Numerous service-member and veterans’ groups, attorneys and judges – including the late Supreme Court Justice Antonin Scalia – have voiced discontent with the Feres doctrine. In its opinion on the Daniel case, the panel of appeals court justices acknowledged their frustration with the doctrine and the potential of this case to present a challenge.

“As we have done many times before, we regretfully reach the conclusion that [Daniel’s] claims are barred by the Feres doctrine and, therefore, affirm [the dismissal of the case],” wrote Judge Michael Daly Hawkins. “Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death. If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.”

Walter Daniel said he is committed to pursuing accountability for Rebekah – who was known as “Moani” by her family – and for her colleagues and their families, who commit their lives to military service.

“Moani was a treasure in the world, and this has been a tremendous loss to our family. A mother, wife, daughter, cousin, friend and outstanding nurse is gone – tragically and completely unnecessarily,” he said. “Now, this fight is not just for our family but for countless future military servicemembers and their families. My beautiful wife was a third-generation servicemember, and I am a second-generation servicemember – we feel deeply connected to our colleagues across the armed forces and are dedicated to fighting for their legal rights.”

Lieutenant Rebekah Daniel was a labor and delivery nurse stationed at Naval Hospital Bremerton, the facility where she gave birth to a healthy baby girl and then tragically died on March 9, 2014.

According to the complaint, she lost more than 1,500 ml of blood – nearly one-third of the amount of blood in the average human body. Court documents allege she bled to death because her healthcare team failed to follow the standards of care for postpartum hemorrhage, including acting quickly to check coagulation levels, administer blood and plasma transfusions, and other interventions. Her preventable death – as a healthy woman following childbirth in a low-risk pregnancy – is recognized as a “never event” by the National Quality Forum, a category of injuries that should never occur if providers follow the standard of care.

“The justice system is my only hope to learn the full truth about what led to Moani’s death, to have experts interview the doctors and nurses who cared for her, and to reconstruct the events of that day,” Walter Daniel said. “Finding answers is a huge part of healing – and an important tool for accountability and hospital safety – but that information is not available to us simply because Moani made the decision to serve her country.”

The complaint also noted that from the time she arrived at the hospital until her death, Rebekah Daniel clearly served in the role of a patient, expectant mother and then new mother – not a member of the military. In fact, the lieutenant had already submitted her resignation from the Navy, with the endorsement of her commanding officer, scheduled to begin in May.

“Part of what makes this an especially strong case is that, on the day that Rebekah’s daughter was born and she died, she was not doing anything related in any way to her military duties,” Hoyal said. “Feres unjustly strips her family of their rights, and just as critically, it shields the Military Health System from the accountability of the justice system.”

Accountability is needed, according to recent research. The Pentagon found that from 2010 to 2013, the average rate of injuries to babies during delivery in military hospitals was twice the national average for civilian hospitals, and cited providers’ “highly variable” follow-through on analyzing and correcting systemic issues leading to adverse events. Additionally, an investigation by U.S. News and World Report found that surgeons in the Military Health System perform such low volumes of several complex procedures that they do not have the experience and competence to assure patient safety.

“If Rebekah had given birth at a civilian hospital, her family would have legal rights. If a civilian wife of a service member had died after giving birth at Naval Hospital Bremerton, her family could bring a claim against the government for the same types of treatment and negligent acts which occurred in the present case,” Hoyal said. “We’re helping Walter and his family fight for Rebekah all the way, because it’s long past time that we put Feres to rest and restore the rights of our brave service members.

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Walter Daniel, a former Coast Guard officer, filed a wrongful death lawsuit after his wife died following childbirth at a military hospital in 2015, but it was dismissed based on a 68-year-old federal ruling. After two failed appeals, he petitioned the U.S. Supreme Court to allow active-duty service members to seek legal damages for medical malpractice harm the same way civilians can. (Heidi de Marco/KHN)

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