Medical malpractice case heading to Supreme Court


It all started with the case of a staff sergeant who went to the hospital at Travis Air Force Base for a routine appendectomy and ended up dead because of what military investigators called an "avoidable error."

"It was really just his personality that overtook the room and everybody loved him," Alexis Witt says referring to her late husband Dean Witt.

Dean Witt's outgoing personality made him the perfect candidate for his job as an Air Force recruiter.

"He wanted everybody to serve because he thought that it changed his life so much that he wanted to see that happen for others," Alexis says.

Dean and his wife Alexis had been married for two years and their second child had just been born when Dean got reassigned to Travis Air Force Base in Fairfield. He arrived ahead of his family who stayed back in Utah, and when he started having stomach pains, the 25-year-old staff sergeant went to the base hospital to find out what was wrong.

"He gave me a call and said, 'I'm at the hospital. They found out what's wrong. It's appendicitis. I'm going into surgery. I'll give you a call when I get out.' So, and that was pretty much the last time I talked to him," Alexis says.

Staff from David Grant Medical Center called Alexis after the operation to say that her husband was safely in recovery.

"They said that the surgery itself had gone well and that they were simply observing Dean," she says.

So, she was shocked when a secretary from the hospital called her 12 hours later, at 2:00 in the morning, to fax over papers to medically retire her husband from the Air Force.

Alexis Witt: She realized that I didn't know what was going on and she says, 'I don't know if anybody's told you, but your husband's not expected to live through the rest of the night.'

Dan Noyes: A secretary tells you that?

Alexis Witt: Right, not someone in uniform, like it's supposed to be.

An internal Air Force investigation obtained by the I-Team shows what went wrong. Dean stopped breathing while he was being wheeled out of the operating room. Hospital staff then tried to revive him with a respirator designed for children.

When that did not work, a nurse anesthetist tried to intubate him, but she fed the tube into his esophagus so oxygen got pumped into his stomach instead of his lungs. His oxygen supply was cut off for seven to 10 minutes, causing severe brain damage.

His wife made the decision to take him off life support.

"I just wanted him to be out of pain and I knew, based on the type of person that he was, if he couldn't express himself and be as boisterous as he was before, he wasn't going to want to stay in that place," she says.

The California Nursing Board accused the nurse anesthetist of "gross negligence" over Dean's death and a similar incident she was involved in at David Grant a year earlier. On that occasion, she did "not respond quickly enough" when a 22-year-old airman undergoing shoulder surgery showed signs of having trouble breathing. He also died.

She surrendered her license in 2007, but was allowed to keep her job as a supervisor in the children's ward at Vandenberg Air Force Base.

Dean Witt's death is not the only recent case of major medical mistakes at David Grant.

"It was, I believe, the day after my birthday, the day I realized, you know, my legs aren't going to come back," Airman Colton Read says.

Read was admitted for gall bladder surgery last July. During the operation, a surgeon accidentally cut his aorta, the main artery from the heart. He lost more than half the blood in his body and his legs were turning blue, but doctors waited more than eight hours to transfer him to UC Davis Medical Center where surgeons were forced to amputate both legs to save his life.

Read says, "Having someone that doesn't know how to perform the surgery, doing the surgery, and having an overseeing surgeon that doesn't know how to repair the mistakes, I just think that that's a recipe for disaster."

Now, Read spends at least three hours a day working out at a military rehabilitation center in San Antonio learning to walk on prosthetic legs.

"It's definitely a full-time job trying to learn to start walking again," he says.

His wife Jessica says she misses dancing with her husband.

"One of the hardest things was realizing we weren't going to be able to dance like we used to," she says.

"I think that this would be a case of clear liability if it was in a private hospital setting with private physicians," says Darrell Keith, Read's attorney.

Keith says the problem for active duty service members like Read and Witt is that they cannot sue the government for medical malpractice because of a 1950s Supreme Court ruling known as the Feres Doctrine.

"Military personnel like Colton Read cannot get fair and just compensation for a horrific medical malpractice injury that he will carry with him for the rest of his life," Keith says.

Veteran's rights advocate Barb Cragnotti says it has created a culture where substandard medical care is standard operating procedure at military hospitals.

She says, "They know, because of the Feres Doctrine, there's no accountability for what they do."

"It's tragic because even a common criminal in a federal prison is allowed to sue for medical malpractice, but someone in our military is not," Alexis Witt says.

But, Alexis is not giving up. She took her husband's case to the 9th Circuit Federal Court in San Francisco earlier this month to challenge the Feres Doctrine.

"They committed an act of malpractice and the nurse was even, I think, disciplined afterwards for what was done," said Judge Milan Smith. "There's no question about it."

The judges said they were sympathetic.

"I have great empathy for your client. I have great empathy for your client. I wish the law were otherwise," Smith said.

But, in this ruling the three-judge panel dismissed the wrongful death lawsuit writing that, "We are bound by precedent of the Supreme Court."

He lawyers plan to file for a rehearing at the 9th Circuit and if that is denied, she says they will take their case all the way to the Supreme Court. She says it is an important battle to fight for her husband and other service members who have suffered and died because of gross negligence at military hospitals.

"Bringing up a case to the federal level, to the Supreme Court level, is putting on record that our family is not OK with how the military healthcare system is ran and it needs to be changed," Alexis says.

The commander at David Grant refused to be interviewed or to provide anyone who could speak on behalf of the hospital.

If you have a tip or a story the I-Team should investigate, send us an email or call 1-800-40-ITeam.

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