Can my wife sue for medical malpractice?

SPC Dasan Toney — Thu, 18 Mar 2021 00:13:26 -0400

So a really good question for all you army guys out there... and tell me what you think!!

So my wife isn't qualified to drive, she is medically disqualified from driving, but she's my wife... and Evans Army Hisptial has issued a lawful order to adhere to my wife's medical conditions and allow her husband(me) to drive her when medically necessary(my wife has multiple medical conditions). We have tried to set up EFMP but they've been taking there sweet Time on it.

If she suffers a bad medical condition that the military should have adhered to, but denies me access to give my wife a ride, and asks for proof that isn't allowed due to the Privacy Act of 1974. Can my wife sue the Military for Medical Malpractice?

Response by MSG Private RallyPoint Member made Mar 18 at 2021 1:08 AM

MSG Private RallyPoint Member — Thu, 18 Mar 2021 01:08:33 -0400

Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare or health management

Based on the nature of your question, then no. Because the Medical Provider gave directions that you are to drive her. If it is your command that doesn't give you the time to do that, then this would not fall under medical malpractice, based on my understanding of the definition.

Response by SFC Casey O'Mally made Mar 18 at 2021 7:28 AM

SFC Casey O'Mally — Thu, 18 Mar 2021 07:28:36 -0400

CAVEAT UP FRONT: I am not a lawyer, and any advice is personal advice based on my assessment of the situation. If you wish to proceed with legal action, or just don't like my answer, TALK TO A LAWYER.

I am not really sure how the medical community can issue "lawful orders" to your commander requiring your commander to issue orders to you, regarding a civilian. I just don't see that as being a valid "lawful order" that would hold up in court. The medical community can require that your wife not drive. They cannot require that YOU, SPECIFICALLY drive her. What happens if your unit deploys? Are they REQUIRED to leave you back to play chauffeur? Obviously, you driving is PREFERRED... but REQUIRED?

Generally speaking, the Feres Doctrine will make ANY lawsuit exceptionally difficult.

And I see this one as problematic even aside from Feres.
-You can't sue anyone involved
-Your wife cannot sue the medical community, because the medical community is doing things right.
-Your wife cannot sue your chain of command, because your chain of command has done nothing wrong, legally speaking
-Your wife cannot sue the government in general, because the government has not created any laws or rules which prevent her adequate treatment.

The bottom line is that military readiness and the mission come first. Soldiers in your situation are required to create family care plans specifically for this reason. You MUST be able to provide proper medical treatment for your family even if you are not physically there. This USUALLY is in reference to single or dual-military parents, but a dependent who is unable to care for themself would ALSO qualify for a FCP. I would get into the FCP regs and start working on one now, that way when your CoC decides you need one, you already have it ready.

Response by CW2 Private RallyPoint Member made Mar 18 at 2021 9:31 AM

CW2 Private RallyPoint Member — Thu, 18 Mar 2021 09:31:24 -0400

Should probably reattack from a different position before jumping to sueing the federal government. If EACH issued a lawful order, show it to your CoC, have the Provider talk to your CoC, reengage EFMP (which wouldn't do much until you come down for assignment), look into the on post shuttle, talk to your NCO Chain and find a solution - maybe FRG can assist with driving your spouse or another Soldier's spouse could.

When faced with a problem like this it's best to go in with a plan that shows you are trying to help both sides, not just "hey Doc said I have to miss work because my spouse has appointments" but more of "hey here are a few plans I've come up with to address my issue so as to minimize the time I need to miss work, which one best helps the unit?"

Response by Lt Col Jim Coe made Mar 18 at 2021 9:59 AM

Lt Col Jim Coe — Thu, 18 Mar 2021 09:59:57 -0400

I don’t see in your discussion anything saying a medical provider did anything incorrect. It looks like your complaint is with your chain of command not letting you off work to be your wife’s caregiver.

I’m my wife’s full time caregiver. It’s not easy. I retired from a good Army Civilian job to do it. I'm glad I did. Here's my advice to you.

-Forget the lawsuit. A lawsuit sets up an adversarial relationship. You need help, not adversaries.

-Make sure your chain of command, from your team leader to your Commander, understands the situation with your wife. My wife began to need some support during my 5th year of service. For the next 17 years I worked with my chains of command to make sure I could help her when she needed it while still doing the mission.

-It is possible for medical providers to provide proof of your wife's conditions to your chain of command. Your wife needs to ask one practitioner, normally a general practice doctor or nurse practitioner, to provide a statement about her medical condition to your Commander. The statement needs to generally explain her condition, the effect that condition has on her ability to care for herself, and the assistance she needs with essential activities. Once the Commander receives the information, then any other officer or sergeant who "needs proof" can be told, politely, "the Unit Commander has the information from our doctor."

-Ask your chain of command, probably your first sergeant, to help you transfer to a non-combat job where you won't be subject to going to the field or being deployed. There's lots of support MOSs where the Soldiers are often "home for dinner every night." Supply, finance, medical administration, communications and IT at installation level. Your chain of command may be willing to help you get out of the infantry unit for your own good, the benefit of your wife, and the general reduction of hassle for them.

-Look for organizations and charities that can help you and your wife with her transportation and other needs. Where I live there's a bus service operated by the local Community College that provides free rides for people with special needs to medical appointments, grocery stores, etc. There are many organizations associated with various diseases, the MS Society comes to mind, that provide help and support for both people with specific diseases and their families. Reach out to any that might help you.

-Talk with your chaplain or religious leader. You and your wife need spiritual support.

Response by SFC Private RallyPoint Member made Mar 18 at 2021 12:42 PM

SFC Private RallyPoint Member — Thu, 18 Mar 2021 12:42:45 -0400

The hospital can't issue you a lawful order, they are not your commander.

EFMP takes as long as it takes. It only comes into play when you're getting your next assignment, it has nothing to do with your current assignment or command.

If your chain of command is not allowing you to drive your spouse at all times, that is a command issue. However, your job is to be a Soldier not a personal driver and you will face the same dilemma in the private sector.

Your command can absolutely ask for proof of her condition without violating her privacy. A simple note from the doctor stating her needs will suffice.

There is no legal order here, in fact, nothing about this has anything to do with medicine or malpractice. There are no laws at play here so there is no legal recourse or reason to sue. At best this is a command issue.

Response by SFC Private RallyPoint Member made Mar 18 at 2021 8:57 PM

SFC Private RallyPoint Member — Thu, 18 Mar 2021 20:57:24 -0400

What do you mean the hospital issued a "lawful order?" Hospitals can't issue orders. Are you assigned to the hospital? If not then you don't fall under the hospital commander at all.

You do realize that the EFMP coordinators are handling many, many cases at once right? I started my EFMP update for my daughter in January because it expires this month. The medical part just got done the end of February. Now I have to update the education part because she was tested for special education. So I need her school to do an IEP - and try to get it done before April. The nurse case manager went as fast she could getting it updated by the PCM - but I bet they have multiple EFMPs to update at any time. You are not the only SM with a dependent who needs enrolled in EFMP. I think when I enrolled my daughter 7 years ago, it took at least a couple months.

There is this: "The National Defense Authorization Act, which was signed into law in December 2019, allows active-duty military members and their family members to file a personal injury claim or wrongful death claim against negligent military medical providers. Dependents and retired members of the military can also file claims."

However, where are you getting a medical malpractice claim from? Did the hospital commit some negligence with your wife in treating her? That's malpractice.

Are you trying to say that your command isn't allowing you to drive your wife when she needs to go somewhere? I'm confused what the issue is honestly.

Response by MAJ Private RallyPoint Member made Mar 18 at 2021 9:30 PM

MAJ Private RallyPoint Member — Thu, 18 Mar 2021 21:30:27 -0400

In this day and age can she not get a lift with Lyft or Uber when you are not available? I mean I get you are trying to be a good spouse and get her where she needs to go, but your job as a soldier comes first. Trust me I get it that it’s not fun when comes before what you want to do for your family. We had a similar issue with my special needs child and his school going virtual randomly this school year due to covid. My VA job would not allow me any covid leave to be home with him to take care of him. My wife ended up having to take an unpaid leave of absence while he was virtual. You can’t leave a 6 year old special needs child home alone and doing work on zoom on a laptop. So we had to make the sacrifice as a family and do what we had to do for our child. Not an easy choice. I feel for you, but she is an adult and with all options out there I think you can probably figure something iTunes