October 10, 2005

Fighting the system
Dean Witt’s family says faulty medical care caused his death. Now, they want to change a 55-year-old ruling that bans malpractice suits.

By Nicole Gaudiano
Times staff writer

Alexis Witt awoke to a strange phone call at 2:30 a.m.

“Get to a fax machine,” the secretary on the other end told her. There was paperwork to sign to medically retire her husband.

She felt confused. Her husband, Air Force Staff Sgt. Dean Witt, had his appendix removed several hours earlier. He was 25 and otherwise healthy. Surely, he was just sick from the operation. Why would he need to be medically retired?

After arriving at her brother’s house, she pressed the woman for an answer.

“Your husband isn’t expected to live more than 12 hours from now,” the woman said.

Dean Witt died on Jan. 9, 2004, in the David Grant Medical Center at Travis Air Force Base, Calif., after a successful appendectomy.

“Negligent postoperative care and supervision” when his throat closed left him in a persistent vegetative state for three months before the family made a decision reminiscent of the Terri Schiavo case and removed his life support, according to a claim Alexis Witt recently filed.

Among the allegations: Hospital personnel, in their failed attempts to pump air into his lungs, used the wrong equipment — pediatric equipment. They say he went for several minutes without oxygen, leaving him with serious brain injuries.

If this had happened to a civilian, the family might expect to see millions of dollars with a ruling in their favor. That’s not the case for Dean Witt’s family, and the reason affects every member of the military.

The government is not liable under the Federal Tort Claims Act for injuries military members sustain while on active duty and which result from the negligence of others in the armed forces.

This hurdle has been insurmountable for scores of claimants since the Supreme Court’s 1950 decision in Feres v. United States, known as the Feres Doctrine. But Alexis, working with her family, has filed her $5 million claim in protest.

“I hate to think that he died in vain,” said Alexis, 25, of Sandy, Utah. “Maybe it just takes this one terrible death to change people’s minds up on [Capitol] Hill about what to do about the law.”

In addition to the claim, the family has three goals.

They are seeking “uncensored” copies of the two investigations of the hospital, one internal and the other by the Joint Commission on Accreditation of Healthcare Organizations, which the Air Force says are confidential.

They want Dean’s service recognized with a medal or other commendation.

And they want the law amended to hold military medical personnel financially responsible for gross negligence in hospitals outside combat zones. The amendment would require such personnel to carry malpractice insurance. It would be a limited change they hope might be easier for Congress to digest.

“You can’t abolish this law,” said Carlos Lopez, Alexis’ brother. “I don’t think it’s right that someone should be able to sue the government if they’re killed in combat or the line of duty. That’s just silly.

“What I’m suggesting is that people who have been injured or killed … should have the ability to sue the malpractice insurance of these doctors, not necessarily the government itself.”

Rep. Barney Frank, D-Mass., has tried nine times to amend the U.S. Code to let service members sue for damages for certain injuries caused by improper medical care. It passed the House of Representatives four times, only to fail in the Senate. His latest unsuccessful attempt was in 2003.

Military law expert Eugene Fidell, who has testified before the Senate on Feres, said it would take a “legislative bunker-buster” and “regime change” on Capitol Hill to dislodge the doctrine.

Although the Pentagon could argue that the Witt amendment may lead to unforeseen problems for the military, Fidell called it “clever.”

“The idea of confining it to gross negligence is at least one way of softening the blow,” he said.

Dedicated airman

Dean could be goofy at times, but constantly surprised Alexis with his intelligence, recalling obscure mathematical and historical facts from high school, she said. He won leadership awards, such as the John L. Levitow Honor Graduate Award, named for the Vietnam-era Medal of Honor recipient and presented to the top professional military education graduate from Air Force airman leadership schools, and awards for photojournalism. And he had big dreams of one day becoming a legendary actor — or a real estate investor.

“He wanted to be a mogul,” Lopez said.

His childhood in Oroville, Calif., was described as difficult, and so he helped others with difficulties, mentoring a boy through the Big Brothers program and organizing food donations at the food bank.

He loved snowboarding, country music, boating and Tennessee Titans football, and apparently had a streak of idealism when it came to the Air Force.

“It’s important for us to know what patriotism is,” he wrote in a May 2001 commentary for the Air Force Web site. “It’s important for everyone in the Air Force to know. Every time we put on this uniform we are saying that no one is going to hurt us or our families or the freedom by which we live.”

Dean was stationed at Hill Air Force Base, Utah, working in the 368th Recruiting Squadron public affairs office, when he met Alexis in an acting class at Salt Lake Community College in 2001. Six months after meeting, they were dating. Three months later, they eloped to Las Vegas.

“We knew we didn’t have a lot of money,” she said. “I borrowed a dress and he had a tux because he was going to be in another wedding that weekend.”

Dean soon became a father with the birth of Hannah and, a year later, Noah, who arrived just before Dean was due to leave for Travis — just before his surgery.

He visited hospitals three times with abdominal pain before he left, once at Hill and twice at civilian facilities. Each one misdiagnosed his early appendicitis symptoms, family members said.

He and Alexis agreed he would go first to California, and she would follow a few weeks later with the children. Sick as he was, he moved every piece of their furniture into their duplex. The pain in his abdomen persisted.

He went to the David Grant Medical Center on Oct. 8, 2003, and left with pain pills and antibiotics, which were used to treat him for a viral syndrome, according to a physician’s narrative summary.

Two days later, he was admitted and scheduled for surgery. “I just thought, ‘Oh, it’s his appendix,’” Alexis said. “I just wasn’t really concerned about the surgery.”

“You know I love you,” she told him. “I’ll talk to you when you get out.”

They never spoke again.

Post-op tragedy

Dean “underwent the appendectomy without difficulty,” the narrative summary states. It was outside the operating room where the problems began.

His larynx began to spasm shut and he turned blue. The doctor’s summary states his lungs began to fill with fluid and he showed signs of severe brain damage. In the intensive care unit, his gaze was fixed, the doctor wrote. His pulmonary status worsened through the night. His prognosis was “poor.”

Based on records and the family’s interviews with hospital sources, Alexis’ claim states that Dean was left in the care of student nurses who failed to get him breathing after his throat spasms.

The claim states that hospital personnel failed to call for help quickly enough and used pediatric equipment when adult equipment was available. They failed to use an oral airway device, incorrectly placed an endotracheal tube, and failed to establish alternative airways, the claim states.

Elaborating in a statement, the family wrote that a certified registered nurse anesthesiologist had removed Dean’s endotracheal tube and allegedly left him with a student registered nurse anesthesiologist. She noticed he was turning blue while moving him and took him to the nearest recovery room, a room used for children, they wrote.

She tried to revive him with pediatric equipment, but it was too small to clear his airway. The certified nurse heard the code blue and rushed to help with other staff members. She tried to reintubate him, but incorrectly placed the tube into his esophagus, they wrote.

A doctor finally placed the tube in his trachea, but no other forms of airway management had been performed, according to the family statement.

Alexis had picked up signals there might be some postoperative problems. She received a string of calls earlier in the day from the base. Dean’s first sergeant was trying to arrange flights for her. A doctor told her they were “observing” Dean because he went without oxygen for “a while.” A casualty officer, whose title did not quite register with her, discussed logistics of her trip.

But it was only when she spoke with the secretary, who told her Dean’s lungs were filling with fluid and he was drowning, that she realized the severity of the situation.

“It didn’t hit me because Dean had always said if something happened to him on duty, someone would show up in uniform,” she said. “I didn’t expect to hear it over the phone from a secretary. I expected to hear bad news like that from an officer.”

Dean never recovered from his anoxic brain injury and lapsed into a persistent vegetative state, the claim states. His eyes would follow shadows on the walls, but it was just reflexive, Alexis said.

She read the book “Tuesdays with Morrie” to him during hospital visits as his athletic frame shrunk to under 100 pounds. Family photos show his calf pictured next to his sister-in-law’s hand, which was double the size.

Part of the reason Alexis continued to wait for a miracle was because doctors originally told her he had gone without oxygen for only about three or four minutes, she said. He had always been the type of guy to surprise everyone. At the worst, she thought, he would end up like Sean Penn’s character in the movie “I Am Sam,” mentally challenged but interactive.

But three months later, a doctor told the family a different story — that he had gone without oxygen for up to 15 minutes, she said. “I just knew at that point there was definitely no chance of recovery for him,” she said.

According to a 60th Air Mobility Wing statement, the hospital could not disclose the results of its investigation into “the serious adverse outcome suffered by SSgt Witt” because they are, by law, confidential. A spokeswoman also cited privacy concerns in response to questions about the family’s claims and would not provide comments from staff members who treated him. She wrote that organizational policy and procedural changes are made “when appropriate.”

“At David Grant USAF Medical Center, we take all adverse outcomes very seriously,” the spokeswoman wrote, later adding, “As always, we focus on employing practices that maximize patient safety.”

Feres’ somber record

When Dean Witt told Alexis’ father of their plans for marriage, he wore his informal blue Air Force uniform. He thought it would help show that he would always provide for her.

Ironically, if Dean had not been in the Air Force, Alexis could have received millions if a judge ruled in her favor, lawyers said.

Even if Alexis had been the one in the military instead of Dean, she could have sued on his behalf without fear of Feres. Attorney and physician Michael Archuleta said he has settled four such claims against the military for $10 million and above.

In one 2001 case against the Air Force, a family received a judgment of $44.7 million after the hospital did not transfer a pilot’s wife for a Caesarean section, leaving the baby with spastic quadriplegic cerebral palsy from lack of oxygen, he said. An appeals court reduced the judgment to $20 million.

Archuleta said he knows of no reliable study gauging the quality of military medicine versus civilian medicine. But after handling cases in both systems, he said, “The military cases are worse. They’re more aggravated.”

Indeed, there are other cases like Dean’s, according to Barbara Cragnotti, who has compiled case studies of military members for the past four years as legislative coordinator for Veterans Equal Rights Protection Advocacy Inc., or VERPA.

The group wants to abolish Feres and allow service members to file civil claims for crimes, human experimentation, medical malpractice and reprisals for fraud, waste and abuse.

Those who have reached her through the group’s Web site, http://www.verpa.us, have made 22 allegations of medical malpractice at military hospitals. Seven of those cases she cited ended with the service members’ death.

Cragnotti’s own son, Joseph, now suffers brain damage after his pneumonia went untreated by a Navy doctor, she said. She believes holding the military accountable would actually save the government money by halting negligence.

“Thirty dollars in antibiotics would have prevented $110,000 in surgeries,” she said. “That doesn’t count therapy. Now he’s damaged for the rest of his life and the country’s paying for his benefits through taxes.”

On the Air Force’s recruiting Web site for physicians, a woman in scrubs smiles with a stethoscope slung around her neck. If the quality of life that Air Force physicians enjoy isn’t enough, the Web site boasts, there are other benefits. Topping the list: “No malpractice premiums or business hassles.”

Proponents of Feres argue that it is essential to good order and discipline for service members not to sue one another. Service members have a remedy with a no-fault compensation system that does not require them to prove they were wronged.

Feres also is important for equity among members killed or injured in service, testified Rear Adm. Christopher Weaver during a 2002 Senate hearing that resulted in no change to the law.

“If the Feres Doctrine were repealed in whole or in part, disparities would exist depending upon whether the member’s death or injury was based on negligence or combat,” Weaver said. “Other disparities would arise based on many variations in state tort law, the fact that the Federal Tort Claims Act does not apply to alleged torts outside the United States, and the vagaries of liability jurisprudence.”

Alexis and her family know the arguments against them and are ready for a long battle. For the legislative part of their campaign, they have asked Rep. Jim Matheson, D-Utah, to push their amendment. His office is researching their request.

Meanwhile, Alexis said, she is prepared to take her case where others have failed, the Supreme Court. If the Air Force denies her claim, which is expected, she will have to file a federal lawsuit and follow it through the court system, just like the others.

The family announced the legal action with a protest outside a federal building in Salt Lake City in August.

“We’re just trying to get it out there that we’re here, we’re not going away,” said Alexis’ sister, Carmen Voegeli, a former Marine. “We’re not just one voice. We’re voices for everyone.”

Time for change?

Feres was reaffirmed by the Supreme Court in 1987 in United States v. Johnson. But four justices dissented, including John Paul Stevens and Antonin Scalia, who wrote that Feres “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

But with two new justices coming on the bench, a second look is possible, Fidell said.

“The Feres Doctrine was created by judges, the Supreme Court, and it could be uncreated by them,” Fidell said. “When you see two seats changing hands, you would have to think this may be an opportunity for the court to revisit the question.”

On a memorial Web site, there are close to 40 tributes written about Dean Witt. His recruiting instructor talked of how he “always had something to offer any conversation” and how he “blew out the competition” in every area of study.

A technical sergeant wrote about Dean’s crazy ideas for extra cash, from real estate to satellite dishes to installing peepholes in people’s doors.

Alexis receives monthly Dependency and Indemnity Compensation payments, a pension for Dean’s seven years in service and scholastic funding for herself and the kids. But there are times she falls short, such as when the car broke down and when the plumbing needed fixing, that force her to dip into Dean’s life insurance payment.

She said she would like to remarry one day, but that means an end to the benefits, something she considers “an extra knife in your back.”

She hates that she had no choice in becoming a single parent and that there is no one in bed next to her.

“I’m mad he can’t be here for his son,” she said. “His son only knows a 16-by-20 [inch] picture on the wall. I’m mad that at the age of 3, my daughter says, ‘My daddy died, huh, Mom?’

“Most parents have a chance to talk to their kids about death when their hamster dies.

“I didn’t have that chance.”