Wurtsboro family seeks to sue military

New Hinchey bill would make it possible

By FRITZ MAYER

WURTSBORO, NY — If the average citizen receives inadequate medical care that results in death, the citizen’s family has the right to sue the hospital or healthcare providers who caused the damage. That’s not the case for soldiers who receive inadequate care from the military, as the story of the late Sergeant Carmelo Rodriguez shows.

The Rodriguez family believes if ever a lawsuit deserved to be filed, it is one that would concern the Rodriguez case. When he enlisted in the Marines in 1997, a military doctor identified a spot on his buttocks as a melanoma, or skin cancer. The doctor, however, did not inform Rodriguez of the diagnosis, nor did the doctor refer him to a specialist. According to Rodriguez’ sister Ivette Rodriguez, he sought treatment several more times for the condition over the years, and each time was misdiagnosed. In 2005, one doctor identified the spot as a wart.

In 2005, the spot began to bother him enough that he sought treatment from a specialist on his own, and found out that he had cancer, which had spread deeply throughout his body. On November 16, 2007, Rodriguez, who has served in Iraq, and who had dropped from 190 to 80 pounds, died. He was 29 years of age and left behind a seven-year-old son.

Before he died, however, he had sought to obtain copies of his medical records. According to Ivette, the Army would not give them to the family in a timely manner. That’s when they called on Congressman Maurice Hinchey for help. The medical records showed fairly conclusively that substandard healthcare provided by the military caused the Marine’s death. But his family is prevented from suing the military because of a ruling handed down by the United States Supreme Court in 1950 in a case called Feres versus the United States.

That ruling, which has come to be known as the Feres Doctrine, essentially says that members of the military and their families have no right to sue the military for negligent medical care given during the military person’s service. The initial case 58 years ago involved several servicemen who recovered highly radio-active fragments from an airplane crash, who were not allowed to sue the military for being made sick by the radiation.

At a news conference at Ivette’s home in Wurtsboro on May 19, Hinchey told reporters it’s high time the Feres Doctrine was altered to allow soldiers and their families to seek relief when the military acts negligently in healthcare matters. He said he will introduce legislation in Washington, DC that would do just that.

In addressing the issue, Hinchey, a longtime and vocal opponent of the invasion of Iraq, took a shot at the war. He said, “Carmelo’s situation and this legislation speak directly to the fact that our military, including the military’s healthcare system, is stretched too thin by the occupation of Iraq.” He said the legislation would provide relief for families, like the Rodriguez’, and would also make the military more accountable for negligent healthcare.

He said the bill has the support of Congressman Barney Frank, who introduced similar legislation last year. Hinchey is optimistic that the bill will pick up more support in the House of Representatives and in the Senate.

Ivette said she and the rest of the extended Rodriguez family have “high hopes” that lawmakers will do the right thing in this situation. A lawsuit, she said, would be the best way to ensure that Rodriguez’ son has a good future.