Legal Question in Military Law in New York

military doctor

A military dr. gave my son 4th degree burns on his left hand due to wart removal. He is left handed, He may only get 25% strength back in this hand an cannot move thumb due to burns down into the joints on top on the tendons. Gone through 1 surgery an waiting for skin grafts, but waiting to see what kind on use the hand has first. I sounds like through a phone call that the dr. that did this is not taking the credit an no investagation may not happen I was told, they can learn from this an mopve on in so many words I was told. His dr. at a Burn Hosp. has said this was gross negligence an if this was in the civil world their would be a malpractice suite files by now. I have been told since my son is active duty the parents have to bring suite. What do you subjest that we do for now til we see the extent of the injury or should be start some kind of action now. They did call today an say that he was to stay here til the end of treatment. He has been placed on Conv. leave. Please advise..........


Asked on 1/18/08, 5:08 pm

1 Answer from Attorneys
Donald G. Rehkopf, Jr. Brenna, Brenna & Boyce, PLLC

Re: military doctor

Unless your son is under 18, he is screwed. Members of the military can NOT sue for medical malpractice under an old rule called the Feres Doctrine.

It is an unclear area of the law whether or not a "minor" - meaning a military member under 18, could have his parents sue on his behalf.

There are some important things for you to do however. The first is to insure that your son gets copies of all of the medical records involved with the original burn/injuries. They tend to "disappear" when people look at what happened and why.

Second, your son - if the current surgeons cannot repair the damage, will be entitled to a disability "rating" depending on the severity of the permanent damage. Do not let him get medically discharged without that - they will dangle this in front of him: "get out now and file for your disability with the VA." While technically possible, it is a very difficult and LONG process. Because it happened while on active duty, he is legally entitled to have his disability determined by the military BEFORE he is discharged, if that is what they are ultimately going to do.

Lastly, if his current Dr. is a civilian, getting a statement from him about the malpractice would be a great boon if there are problems down the road.

Email me privately if you have any more questions, at [email protected]

Good luck,

Don Rehkopf

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Answered on 1/18/08, 5:28 pm


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