Surgeon, Government Not Liable for Wrong-Site Breast Surgery
Army colonel had lymph nodes removed from wrong side at military hospital.
Under federal law, neither a military surgeon nor the U.S. government could be held liable for a wrong-site surgery performed on an active-duty Army colonel at a military hospital, a U.S. district court judge has ruled.
Col. Adele Connell underwent breast surgery at Walter Reed Army Medical Center in Washington, D.C., in 2008 to treat cancer that was discovered in her left breast. Court documents show that Col. Connell's doctors, led by surgeon Annesley Copeland, MD, planned to perform a double mastectomy and remove the lymph nodes closest to the tumor on her left breast to determine whether the cancer had spread.
In a malpractice lawsuit against Dr. Copeland, Col. Connell claimed that the surgeon operated under the assumption that the cancer was on the right side, not the left, and that the surgical team proceeded to remove 17 lymph nodes from her right side. Since the cancer was actually on her left side, the plaintiff alleged that the removal of the lymph nodes was "erroneous and unnecessary."
The U.S. Attorney's Office for the District of Columbia argued that as a federal employee, Dr. Copeland had the right to "absolute immunity" from liability under the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act"). The law lets federal employees be dismissed from lawsuits related to actions taken "in the course of their official duties," and for the government to step in as a substitute defendant.
Col. Connell argued that Dr. Copeland was acting as a civilian contractor, not a federal employee, when she performed the surgery, but District Judge John D. Bates found her arguments insufficient to support the claim and granted the government's motion to remove the surgeon from the case.
Next, the government moved to dismiss the case entirely, invoking the "Feres doctrine," which states that the government is not liable for injuries to military servicemen that arise in the course of actions "incident to service." Because Col. Connell's injury was sustained at a U.S. military facility while she was on active duty and receiving medical care from active-duty military personnel, the court agreed that Feres applied and granted the government's motion to dismiss the case in April 2010.