(May 20, 2008 – find an update to this post)
[Let me begin this post with a bit of a disclaimer. My husband is a retired veteran of the Air Force — 20+ years — before I knew him, but that doesn’t diminish my pride in the fact that he served our country. His son and our daughter in law are both career Air Force, too, and our other daughter-in-law just completed eight years in the Air Force. So yes, we are huge supporters of our American soldiers.]
The story I’m about to tell you holds several interests and outrages and raises some important questions:
1. Since when is a soldier not a citizen first?
2. How is it that an accurate diagnosis could turn into a MISdiagnosis 10 years later?
This story is told on CBS’s evening news — about a young soldier, Sgt. Carmelo Rodriguez, who joined the Marines in 1997. During his induction physical, the doctor noted a mole and called it a melanoma on Carmelo’s records. But nothing was said to Carmelo, and the paperwork was filed. Carmelo went through training, has spent these ensuing years in the Marines, and was deployed to Iraq…
…. where last year, the mole began to get inflamed and filled with pus…. so the sargeant checked in with the military doctor. He was told it was a wart, and to “wait and see.”
Sargeant Carmelo Rodriguez died 18 months later, of melanoma.
Turns out, according to the military itself, that there are “several hundred” cases of misdiagnosis of medical problems for soldiers in Iraq each year. Others have died from misdiagnosis and medical mistakes, too.
And I SO UNDERSTAND THE OUTRAGE! Because I’ve been there — misdiagnosed and floundering. There are tens of thousands of us — but most of us aren’t soldiers…
So here is OUTRAGE #2: Because Sgt. Carmelo Rodriguez was misdiagnosed by a military doctor, his family has no legal recourse. None Nada. A law passed in 1950, called the Feres Doctrine, removes that right for soldiers, even when injured by the actions of a military doctor.
But wait! There’s more!
Outrage #3: Because Carmelo was sent home to die — so he could be with his family — he was discharged from service. That means that he can have a military funeral — but his family has to pay for it.
This entire story is just wrong on so many levels. The original silence on the part of the induction doctor who didn’t speak up about Carmelo’s melanoma, the missed-diagnosis on the part of the doctor in Iraq, the fact that Carmelo died!, the fact that the family cannot find legal recourse to be compensated for his loss (to help raise his son), and the fact that the military would simply turn a blind eye toward paying for the funeral. And those facts are probably only the tip of the iceberg.
Questions for the two military doctors: Since when don’t you tell/warn someone about their medical condition? How could you have missed melanoma?
Questions for the Marines: Since when do our soldiers cease to be American citizens with the same rights the rest of us have to sue? And since when does the military send a soldier home to die — especially one who has seen combat — and not pay for the soldier’s funeral?
The lack of communication, misdiagnosis and death are bad enough. When compounded by the final insults of rights removal and not helping to bury the soldier — all Americans should be offended.
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The death of any young person is a tragedy. And a preventable death like this one is even worse. I hope his dependents are receiving the social security benefits they are entitled to.
I would advise any young people joining the military to accept the life insurance offered, it only costs a small amount and can provide about $400k in coverage.
Also, never decline the exit physical. You have to stay in another day to get everything tested, but if Carmelo had done this, the service would have “owned” his medical condition/dependents, etc.
My son Michael Fremer was killed at Fort Polk, La on 2/13/08 because of Army Negligence during a training exercise. The Army can not be held accountable because of the Feres Doctrine. This law needs to be changed. Why is the Army exempt from being held accountable for Negligence? Our young men and woman are risking their lives. This is how our country treats the soldiers and the families? The Feres Doctrine needs to be overturned!
There are other cases that involve the feres Doctrine. For example Medical Malpractice in the army. Also Marines being exposed to Toxic chemicals on US Bases. The Military is exempt from being held accountable on all of these matters.
I grew up with Carmelo Rodoriguez in Ellenville NY. We both lived at 10 Eastwood Avenue in Ellenville NY. He was a really good person with a tough childhood. I pray to god that he is in heaven looking down at his family. Its really messed up that if a regular doctor screwed up like that they could get sued and in a lot of trouble, but the military doctor gets nothing for this tragedy. Im sorry for what happened. To the whole Rodriguez and Ferraro Family my payers are with all of you.
This is another victim of the poor medical care in the Military. Please read the story on Airman Colton James Read. This is the same Military hospital that Killed Dean Witt. This occurred at the David Grant Medical Center at Travis Air Force Base.
The family can not take action because of the Feres doctrine. It is time for congress to act.
http://cbs11tv.com/health/medical.mistake.military.2.1092872.html
http://www.coltonread.com/
By the U.S. Congress’s acts/inaction are U.S. Service Personnel and U.S. Veterans captured within the Executive Branch with no useful access to the Judicial Branch??
The 1950 U.S. Supreme Court’s FERES DOCTRINE holds the U.S. Government harmless for injuries to active duty service personnel. In 1988 the U.S. Congress’s Veteran’s Judicial Review Act created the U.S. Court of Veterans Appeals (COVA). As a practical matter, thereby now gone for both U.S. Service Personnel and U.S. Veterans are the check and balances within and between our branches of government. Please hold your members in the U.S. House and U.S. Senate responsible.
In 2009, fifteen (15) years after the COVA Chief Judge’s statements, the Secretary of the DVA and his laymen “initial adjudicators” still are not held responsible for their “freely ignored” and medically brainless “Schedule of Ratings for Disabilities” decisions, i.e., the “STATE OF COURT” transcript PARAGRAPH 9 with Congress’s law of the land U.S. CODE, TITLE 38, SECTIONS (§) 511 and § 7252. Decisions of the Secretary; finality; REFERENCES [1], [2] & [3]. In 1994 the Chief Judge of Congress’s 1988 established inferior Veterans Court stated that the, “Constitution, Statutes and Regulations” are “policy freely ignored” by both the Secretary of the Department of Veterans Affairs (DVA) and “The Veterans Health Administration” (VHA). This is a U.S. Congressional no teeth LEGISLATIVE Branch Court. Its Chief Judge describes veterans captured within an out of control, DVA health care process. Lost is a before military service right to a must be obeyed (independent from Congress and the Executive Branch’s DVA) superior Judicial Branch Court.
A couple of examples of the “initial adjudicators” to date “freely ignored” are this veterans 1957 DVA Physician’s resultant USAF Physician’s, “MPerR PERMANENT” “SURGEON HQ ARRC JUN 25 ‘58 MEDICALLY DISQUALIFIED FOR MILITARY SERVICE” (1952 to 1956)! Then the layman adjudicator’s brainless 6/27/96 Supplemental Statement Of Case (SSOC) no “…competent medical evidence…”. After an ongoing 19 years in the DVA administrative process the veteran receives a 100% disability. To date there is still no recognition of their 1957 DVA physician’s resultant 1958 USAF physician “disqualified”!
REFERENCES (Emphasis added throughout) with comments:
[1] “STATE OF COURT, CHIEF JUDGE FRANK Q. NEBEKER, STATE OF THE COURT, FOR PRESENTATION TO THE UNITED STATES COURT OF VETERANS APPEALS THIRD JUDICIAL CONFERENCE, OCTOBER 17-18, 1994 {as it appears in Veterans Appeals Reporter}”
——————–PARAGRAPH 9 of 16 in “STATE OF COURT” TRANSCRIPT records DVA laymen ignoring medical opinion without veteran recourse.—————————–
“I believe my message is clear. There is, I suggest, no system with judicial review which has within it a component part free to function in its own way, in its own time and with one message to those it disappoints — take an appeal. That is, I am afraid, what we have today in many of the Department’s Agencies of Original Jurisdiction — that is AOJs — around the country. Neither the Court, through the Board, the Board, nor the General Counsel has direct and meaningful control over the Agencies of Original Jurisdiction. Indeed, it is also clear that the VHA — the Veterans Health Administration — ignores specific directives to provide medical opinions as directed. And this is resulting in unconscionable delays. Let us examine judicial review. Remember, the Court and the Board do not make policy, the Secretary and Congress do. The Court simply identifies error made below by a failure to adhere, in individual cases, to the Constitution, statutes, and regulations which themselves reflect policy — policy freely ignored by many initial adjudicators whose attitude is, “I haven’t been told by my boss to change. If you don’t like it — appeal it.” The complete 16 paragraph “STATE OF COURT” transcript is available on request. Previously at, and now missing from the Chief Judges and state_of_court sites: http://www.goodnet.com/~heads/nebeker & http://www.firebase.net/state_of_court_brief.htm
The top medically ignorant “boss” is Congress’s confirmed “Secretary” of the DVA.
AND THE CONGRESS’S “policy freely ignored” UNITED STATES CODE law of the land, take away from Veterans:
[2] UNITED STATES CODE, TITLE 38 > PART I > CHAPTER 5 > SUBCHAPTER I >
§ 511. Decisions of the Secretary; finality
http://www.law.cornell.edu/uscode/html/usc…11—-000-.html
“(a) The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), THE DECISION OF THE SECRETARY AS TO ANY SUCH QUESTION SHALL BE FINAL AND CONCLUSIVE AND MAY NOT BE REVIEWED BY ANY OTHER OFFICIAL OR BY ANY COURT, whether by an action in the nature of mandamus or otherwise.”
THEREFORE, NO COURT REVIEW OF THE MEDICALLY UNTRAINED DVA laymen and “Secretary” “schedule of ratings for disabilities” decisions as proven by:
[3] UNITED STATES CODE, TITLE 38 PART V > CHAPTER 72 > SUBCHAPTER I >
§ 7252. Jurisdiction; finality of decisions
“(b) Review in the Court shall be on the record of proceedings before the Secretary and the Board. The extent of the review shall be limited to the scope provided in section 7261 of this title. THE COURT MAY NOT REVIEW THE SCHEDULE OF RATINGS FOR DISABILITIES adopted under section 1155 of this title or any action of the Secretary in adopting or revising that schedule.”