A Florida case represents a setback for anyone in the military who is the victim of medical malpractice in a military emergency room.
A federal appeals court has overturned a nearly $6 million dollar verdict against Jacksonville Naval Hospital saying that the higher burden, reckless disregard should be the standard to prove military medical malpractice.
The case in question involved Tracey Turner, who became blind after going to the emergency room at Jacksonville Naval Air Station in 2001 suffering from an asthma attack.
The records show the nine-year-old was given just one of three medication required by his doctor. He fell into unconsciousness. The doctor tried three times unsuccessfully to intubate him. Only when an off-duty nurse was called in to perform the procedure was oxygen delivered to the child. Turner, now a teenager, suffered neurological damage and is blind as a result.
During a two-week trial in 2005, the judge ruled that ER workers were negligent because they failed to quickly medicate Turner even when ordered by a doctor. Judge Henry Adams ordered the government to pay the family $5.9 million.
But lawyers for the government said mere negligence is not enough, the burden of proof should be higher and reckless disregard should be the standard as well as Florida’s Good Samaritan Law. The law grants legal immunity to anyone who attempts to save someone on the side of the road or in a hospital setting in an emergency.
The “reckless disregard” standard means that the medical personnel knew or should have known that their care would result in injury. It is more difficult to prove.
F. Catfish Abbott, the attorney representing Turner, says those seeking emergency room medical care already have a problem, this standard compounds it.
He tells IB News, " It's unfair for those in the military, they already have enough trouble getting quality health care. This makes it easier for those problems to slide by."
Abbott says the federal government already grants military doctors zero exposure so the reckless disregard standard is unnecessary. And in Florida, military doctors do not have to take a test or exam to practice medicine.
The three-judge panel in Atlanta agreed with government lawyers and decided the higher standard should apply with the Navy hospital also should benefit from the Good Samaritan Law, even though it is not licensed in the state of Florida.
Since the decision is published, it becomes precedent in the circuit which includes cases in Florida, Georgia and Alabama. And Turner’s parents will not see the $810,000 they were originally awarded. The appeals court said their claims weren’t filed on time.
Now the case could settle before it goes back before Judge Adams for further action. It could also be appealed to the full circuit court or be certified to go onto the U.S. Supreme Court.
“Justice delayed is justice denied, it took two years just to get to the circuit court,” says Eddie Farah whose firm initially represented Turner. #