Thousands and thousands of plaintiffs appeal their cases to the U.S. Supreme Court every year. However, only a fraction of those cases will ever be heard by the Court. That is because the SCOTUS (Supreme Court of the United States) is selective about what cases they take. They have a limited schedule and only agree to hear cases that may have significant nationwide impact or settle legal issues on which there is disagreement in lower courts.
Recently the Court released a list of some of the cases it has agreed to take on this term (which begins in October). According to the Huffington Post, one of those cases involves claims of medical malpractice and battery by military doctors on the island of Guam. Interestingly, the case is making headlines because it was filed by the plaintiff himself, without a lawyer at all (known as “pro se”). It is rare for any appeal to be filed without an attorney and it is downright unheard of for those cases to be added to the SCOTUS schedule.
Medical Malpractice, Battery, & The MIlitary
According to the court documents, the petitioner (in this case, the plaintiff who is claiming malpractice) alleges that he was operated on in 2003 for cataract surgery while as the United States Naval Hospital in Guam. However, he claims that he withdrew his consent to the operation before the surgery. Notheless, the operation proceeded. Complications developed during the operation that require ongoing care.
The withdrawing of consent argument raises unique implications. That is because it raises the possibility that the medical team may be sued for battery. Battery is an “intentional tort,” unlike medical malpractice which is rooted in negligence. Battery is most often understood in the criminal context, but it is also a tort (a civil wrong). It is essentially any intentional harmful or offensive conduct to the body of another. That is why consent is required in all medical actions, because without consent medical professionals are committing battery if they hurt with in a procedure in a procedure in which you didn’t give permission.
In this particular case, the plaintiff’s medical malpractice suit was thrown out by the lower court, but the battery claim was retained. This was likely due to the issue of the “Feres doctrine” on which we’ve often discussed on this blog. The doctrine essentially provides immunity to medical doctor when working on active-duty personnel. The lower court apparently did not believe that the immunity applied to battery claims. The appeals court disagreed and threw out the battery charge as well.
The SCOTUS will likely settle the matter in this appeal, determining the extent of the immunity for military personnel. There remains continuing criticism of the Feres doctrine as a whole. The rule wreaks immense havoc on many military members and their families who are seriously hurt as a result of preventable medical mistakes.
In any event, lawyers, patients’ rights advocates, and others will undoubtedly be watching the case to see if the SCOTUS issues any ruling that might have impact on future medical malpractice cases. Even if the petitioner in the case is not successful, the specific language used in the opinion may have implications for future arguments, particularly for possible challenges to the scope of the military malpractice immunity.
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