We just concluded what might have been the saddest case we have ever handled. Our clients, Army NCO’s married to each other, were stationed in Korea. The wife got pregnant with her first child. She was young and healthy. The pregnancy was not complicated. On a holiday weekend she went into labor and they went to the base hospital. To jump to the end of the story, their child survived only a few minutes after delivery.
There was no question that the obstetrical care provided by Army medical personnel was deficient. Deficient is actually a kind description. Our client was given a drug, Pitocin, which is used for women having difficulty progressing through labor. That was not the case with our sergeant, and if you give Pitocin when it is not needed it leads to a condition called tach systole. The contractions speed up so much that the baby does not get adequate oxygen. This is what happened, but things got even worse. Once the doctor and other medical personnel figured out that the baby was in trouble and an emergency Caesarean section was needed, neither the operating room nor the operating room personnel were ready. It was total confusion and by the time they were able to deliver the child, it was too late.
These soldiers came to us for help – justice for the needless death of their son. Because this occurred overseas, their only avenue for relief was the Military Claims Act. This law allows those injured at facilities overseas to make a claim against the service branch involved. However, it is a peculiar law. You make a claim against the branch of the military, and then lawyers for that branch determine whether or not the claim is valid and, if so, how much may be paid. If you don’t like their decision then you can appeal it to their bosses – same branch of the service, mind you. There is no recourse to any court or some organization outside of that chain of command. In essence, the lawyers defending the cases are the judges too. It is truly a “stacked deck.”
In fairness, the Army Claims Service lawyer in our case was courteous in the handling of this matter. When he met with our clients he was respectful and sympathetic. However, when the offer was made, it was pretty much “take it or leave it.” When I pointed out that the Army Claims Service had paid much more money in lesser cases brought under the Federal Tort Claims Act (for claims in the United States), he politely but quite firmly conveyed an explicit “so what” message. I got the same response with regard to presenting civilian cases. I argued that the care was grossly negligent, including pointing out that the most plausible explanation for giving Pitocin was that the doctor wanted to get the delivery over with quickly. It was a holiday weekend, after all.
The Army lawyer assured me that he had an open mind and if I could show some sort of different circumstance then he might change his position, but it was soon apparent that there was nothing I could tell him that would make any difference. In one form or another the only response I would get was that this was a Military Claims Act case and the Army determined the valuation. My opposing counsel held all the cards. Our side had no leverage. We finally got the case settled but there was no sense of satisfaction on my part, not in the least bit – and, more important, I am 100% certain my clients did not feel they got anything close to justice.
For 32 years now I have been a trial lawyer. The legal system is not perfect, but I have also found that our adversarial system usually works the way it should. When the two sides battle it out before a hopefully neutral fact finder, more often than not the outcome is pretty close to right. Cases get settled because both sides are looking at a trial and weighing their respective odds and exposure. This is why most cases do get settled.
The Military Claims Act has no balance. The Army, Navy or Air Force has no trial risk. There is no danger that some neutral fact finder might not agree with their lawyers and whatever position they have taken. They don’t have to worry about the other side having a more persuasive case. Is there a better way to do this? I will leave that to wiser minds than mine. However, there is no doubt in my mind that the current system is unfair to our service families. We ask a lot of military personnel and their families. Shouldn’t they have an effective recourse for injuries incurred overseas? After all, they are there defending us.