The Broken Soldier

We’ve had the Feres Doctrine category for some time, but haven’t used it. It’s about time. And with yesterday’s prednisone compound injection into my spinal cord, I’m feeling prolific tonight (and jittery and irritable).

Feres is defined thusly:

“A legal doctrine that prevents people who are injured as a result of military service from successfully suing the federal government under the Federal Tort Claims Act. The doctrine comes from the U.S. Supreme Court case Feres v. United States, in which servicemen who picked up highly radioactive weapons fragments from a crashed airplane were not permitted to recover damages from the government. Also known as the Feres-Stencel doctrine or the Feres rule.”

Source: www.nolo.com

Broadly interpreted, this legal doctrine also prevents soldiers and their families from suing military doctors or a military hospital or a branch of the military for even the most egregious of medical malpractices. From amputating the wrong limb to leaving Army towels in a soldier’s abdomen during surgery (which became infected and ultimately killed him), to cases like mine in which an Army doctor felt compelled to render insults for expressing concern about losing sensation and movement in my right leg rather than medical care, military doctors are immune from consequences of their negligence and incompetence. This is shocking to most people when they learn of this doctrine. It certainly was to me. Fortunately there are at least two US Supreme Court Justices on record voicing disapproval of this doctrine. Perhaps in time, with the right combination of human cry and elected government Feres can be revisited and thrown into History’s dustbin where it belongs.

My wife shared with me a bit of our web analytics this evening. Apparently we’ve been visited 19 times by individuals using the Guard Bureau networks. The average time spent on the site was 2 minutes and 40 seconds. And most of those from GB visiting the site weren’t first time visitors. If I thought for a moment they were using this site to inform themselves regarding flaws in this system, a system that probably works for them but to which so many of us at the bottom of the totem pole have had our healths sacrificed, I’d be pleased and honored. If I thought they’d take this information and use it as the basis of an inquiry and possibly a starting point to begin improvements I’d be optimistic.  But I suspect that isn’t the case.

Your continued patronage, comrades, is appreciated.  This site and the reason for its existence wouldn’t be possible without all of you.

Recently my friend Brian contributed to the site. I’m happy to have him aboard. Brian is my closest friend. He’s also a professor of philosophy and logic at the University of Michigan. Brian received his Ph.D. in Modal Logic from McGill University. Brian’s input is invaluable, as he possesses a rare talent for balancing passion about an issue with clarity of expression. And for some reason, he thinks highly of me. “De gustibus non est disputandum” I suppose.

In the future I’ll be asking other friends to share their thoughts and feelings about this matter. It is my sincerest hope that in reading their stories of how this situation has affected them, people held in high regard in their respective fields - areas as diverse as research sciences, professional academics, health care professionals and published mathematicians to FBI intelligence analysts and current Army officers - the reality of what is happening will be clear to everyone. I pray that at least one these stories will touch you in such a way as to create in you a need to get involved. Until people do get involved nothing will change.  Many of us have family, friends, acquaintances, co-workers, fellow parishioners, etc. who are in the military.  It will only be a matter of time until this story becomes your story.

Democrat or Republican, Liberal, Conservative, Moderate or non-political, in these politically divisive times the importance of soldiers’ rights seem one of the few issues on which we can all agree. With scandals at Walter Reed, disabled soldiers being asked to return all or part of their enlistment bonuses, and the many other issues concerning service members and veterans in recent press it should be obvious to all of us that there is a lot of room for improvement. It is also clear to many of us serving now that those in positions of authority in the military and in elected government don’t feel hurried to address such issues. Issues that seem to matter to people of all political stripes. In the coming elections it is important to press your favorite candidate on these matters, along with others you regard as important. What will he or she do to improve this system? Will he or she press Congress or the Courts to revisit Feres and other case laws barring service members and their families from bringing lawsuits against military doctors for the most gross medical malpractice - a right every citizen, including prison inmates, have but service members do not. Ask them to be specific. And if elected, hold them to their promises. A great injustice is being done. An injustice that can be meaningfully addressed if sufficient numbers of people get mad, get organized, and get involved.

I am Brian MacPherson, a close personal friend of Jimison Hutchinson. I just wanted to let all of you know what type of person Jimison is, as well as the impact his injuries are having on his friends. As a friend, he is loyal to a fault with a wit and intelligence that is matched by no other person I have ever known. As a husband to Sarah, he is devoted and loving. And as an American, he is by far one of the most patriotic people I have ever met. While this may sound soft-soapie or an exercise in hyperbole, it is actually true. There really are people like Jimison in the world, though they are hard to find.

When Jimison joined the army to train to be an officer, I had no doubt he would excel and attain a very high rank. Jimison is unusual in that he not only has a high intellect, but he is very adept in terms of physical skills. He would make an excellent combat officer but he would also make a great computer analyst protecting us against terrorists, or a great researcher.

Jimison was once a very strong man, we used to work out together, While I myself am no weakling, I could not keep up with Jimison in workouts. But after his accident in basic training, he is now walking with a cane, he is in constant pain, and he suffers with this pain each and every day. It tears my heart apart to see Jimison suffering. This is not the strong man I once knew. However, in the midst of suffering, he shows great courage. He will not back down in his bid to persuade the army to give him what he is owed – unconditional and unlimited health care to correct or mitigate his physical symptoms that were the direct result of an accident while training. This man was willing to fight for his country, which he loves with a passion, but the military bureaucracy is unwilling to pay for his medical bills. They are stalling, and each day they stall, the worse Jimison’s condition becomes. I want all of you to write your congressperson or your senator and ask them not to let this happen to Jimison or to any other solider willing to fight for the cause of defending this great country.

In the course of a primary source lit review I’ve discovered my symptoms are perfectly consistent with my injury. Each symptom corresponds, in a textbook fashion (literally), with L5-S1 herniation and typical consequent nerve root compression/lesion. This doctor, Robert Toon, has either made a very amateurish mistake (which I am disinclined to believe), or he is deliberately confusing this matter (to what end I can only speculate).

Dr. Toon’s method of remedying his (possibly feigned) confusion was irregular at best. When the MRI (from his 10 second assessment) didn’t match the MRI report, and, according to him, no longer did my symptoms match the diagnosis (which isn’t true by the way), Dr. Toon sent me to X-ray, lab, and to radiology for an additional MRI. This is a non-standard approach. Lateral disc herniation is very difficult to find on MRIs with the naked eye (esp. a casual look at a sagittal view MRI). A contrast dye CT scan/myelogram and a careful clinical evaluation and documentation of symptoms is the usual approach to confirming a lateral disc herniation.

In his report he makes certain statements that, in light of the information I’ve found, are irrelevant to my injury. For example, he speaks to the presence of a normal patellar reflex. Of course it’s normal, as I have an L5-S1 disc herniation with S1 nerve root compression - a type of compression in which patellar reflexes are preserved.  Had he opted for the correct diagnostic measure for my injury - an Achilles tendon reflex, for example - appropriate for L5-S1 disc herniation with suspected S1 compression/lesion (which, as explained above is a diagnosis consistent with my symptoms and MRI findings, even his own), he would have found it depressed.

I feel this man is trying to set me up to deny me what is rightfully mine.  He is doing so in a fashion that I’m certain would usually work, especially with junior enlisted and junior officers (troops less inclined to know medical terminology and/or question the opinions of a retired colonel). Speak in the magical language of medical sciences/neuroscience to give the appearance of actually doing the right thing, when in reality his allopathic prestidigitations serve only to confuse a doorway diagnosis.  He’s a paid government whore.  A man willing to harm his own kind for money.  He should be ashamed of himself.  But I doubt a man capable of such action has shame.  But fear not, even with Feres his just desserts are in prep (courtesy of our resident chefs, Jimison and Raymond, who will be reporting his unethical and possibly illegal handling of this case to his certifying board).

“On Dec 9, 2007 3:05 PM, Brian wrote:
Jimison,

I don’t give such advice lightly - to tell a good friend to leave his own country. But I came to that conclusion some time ago because I could see you were never going to get treatment. You can build a dozen websites and have a 100 Uncle Carls (referring to Senator Carl Levin) on your side, but the red tape and the attendant retarded thinking that goes with it are too much to overcome.

In light of what you have told me recently - which is sadly consistent with everything else you’ve told me in the past - I am coming to that conclusion again, that you have to leave. What takes top priority is your health, because your goals and dreams depend on it. The house, yes, even your country take a back seat to your health. You are luckier than most in that you have an option - most are stuck.

No country is perfect. Canada sucks too for many reasons. We don’t have any civil rights here because the government can suspend any of them at a drop of a hat using the “notwithstanding clause” Canada is no heaven, you know that. But it may be all you’ve got left. I’ll buy you a Tim’s coffee, a donut and a tuque (your citizenship kit) if you decide to make the move.”

My best friend Brian wrote me the above email today. The advice to which he speaks is in regard to emigrating to Canada. My wife is a Canadian and English citizen. If we leave I, as her spouse, could get medical care almost immediately.

For the first time in my life I am considering it. I hope those of you reading this fully grasp what this means. A man who has served his country twice in two separate branches of the military, who loved his country more than his own desires and goals - loved it enough to put both on hold to serve again, with Old Glory tattooed on his forearm, and who proudly displayed on his home the largest flag on the street is forced to make this decision. Why? Because his government and his comrades in arms can’t keep their promises or do the right thing by one of their own. And it would seem the majority of this country’s citizens lack the strength of their supposed convictions to bother themselves to write a letter to their congressman, their local media outlets, or anything else more time or energy consuming than putting an ‘I support our troops’ bumper sticker on their car. Pathetic. The way this country is treating its injured service members, myself included, is truly shameful. And what’s more shameful is that the citizens and government of a foreign country, who morally and legally owe me nothing, will act to do right when my own countrymen and government cannot.

Knox was a bust. An 8 hour drive each way, a bunch of money, our time, my wife’s PTO, a wild goose chase through Ireland Army Community Hospital, aggravation of my neurological symptoms, and nothing. No medical care. No Medical Evaluation Board. No definite answers. “Not fit as is but needs treatment.” That’s where I stand. Why I stand where I stand is a story in and of itself.

The attending doctor, a retired Army Colonel, re-diagnosed my injury. He didn’t do a very good job. Against the opinions of a team of doctors, including radiologists, my family care doctor (the director of the treatment facility I’ve been going to), pain management specialists, and against the symptoms I experience, this doctor, from literally 10 seconds of looking at my MRI (looking for a lateral disc herniation on a sagittal section MRI, something that is practically impossible to do) re-diagnosed me. I went from having a diagnosis consistent with my symptoms to a diagnosis that isn’t. When this became clear to the former Colonel, he didn’t take another look at the MRIs. He didn’t question his judgment. Why would he have to? I’m junior enlisted and he’s a retired colonel. Giving further thought to the matter the former Colonel’s behavior can really only be explained in one of two ways: He’s either completely incompetent (as he, an orthopedic specialist for 40 years, doesn’t know what a physical anthropologist does), or he gave the false diagnosis on purpose to deny me VA benefits. Gotta keep that defense budget down somehow. I wonder how many other soldiers, those less inclined to question what they’re given - meaning most of them, he’s screwed in the course of his career.

In his write-up the doctor spoke to an absence of certain symptoms without asking me if I had them, or giving me an opportunity to discuss these matters with him. In fact I do have most of the symptoms he claims I don’t have in his write-up. Had he taken a moment to look at my medical records he would have been aware of these symptoms. He contradicts himself at least once in his write-up. In one paragraph claiming I don’t have trouble walking, and in the very next claiming I do. He fails to mention dorsiflexion paralysis in my right toes, but does speak to my being fat. When I left university I never thought I’d hear this again, let alone say it, but he, like most every other person affiliated with the Army I’ve met, seems to be blaming the victim. I have gained 40 pounds since my injury. That isn’t the cause of my symptoms as he seems to suggest. My symptoms are the cause of my inactivity. The 8 months of inactivity, along with taking medications that cause weight gain, are the reasons I’ve gained weight. He then confused expressions of extreme pain with being winded. It didn’t occur to the doctor heavy exhalation with each step (without the accompanying heavy inhalation), perspiration on my brow, and tachycardia are signs of heightened arousal. Heightened arousal is a normal sympathetic nervous system response to pain and stress.

Once again my life and the direction it will take is in the hands of an idiot. An idiot who used to wear Army greens. An idiot in spite of his education. An idiot in spite of his former rank. A professional fool not careful or concerned enough to figure out what a man half his age, a man with degrees in biopsych, philosophy, and physical anthro to the doctor’s medical degree can. My God, can the Army and or anyone in it do anything right?