Originally created 02/11/01

Boy's brain damage hurts family



It wasn't an accident or God's will that caused their firstborn son's devastating brain damage, but arrogance and incompetence by Army physicians, Robert and Julia Seipel believe.

The career Army officer and his wife were expecting their first child when she went into labor about 2:10 p.m. Nov. 10, 1998. When baby William arrived 16 hours later after a Caesarean section performed at Medical College of Georgia Hospital, doctors gave the couple the news: Their firstborn son had brain damage.

In a response to a lawsuit filed by the couple against MCG, later settled out of court, the MCG physicians who performed the procedure state that the baby would not have been severely injured at birth if not "for the negligent acts and omissions" of Army physicians.

Army doctors attended Mrs. Seipel at MCG when she went into labor, but the MCG staff doctors contend they were not called in soon enough when complications with the delivery arose.

The Seipels are not the only military family with complaints about medical care.

The quality of military medical care has been a hot topic in Washington for the past couple of years and is expected to remain a top priority for Congress, said Tamara Jones, who is on interagency loan from the Veterans Administration to work on health care legislation for U.S. Sen. Max Cleland.

A comprehensive U.S. Department of Veterans Affairs study released last year reported nearly 3,000 medical mistakes and more than 700 deaths at VA facilities in a 19-month period. The VA operates 172 hospitals, 132 nursing homes and more than 650 outpatient clinics.

In the past five years, the U.S. government has paid $1,802,500 to settle five lawsuits filed in connection with care at Eisenhower and the local Veterans Affairs hospitals. Five lawsuits filed in 2000 are still pending.

When claims are filed locally, the majority are settled before litigation begins, said Paul Elkin, a civilian attorney with the U.S. Army Judge Advocate General's office here.

Army regulations state meritorious claims are to be settled promptly, he said.

If claims are not settled and lawsuits are filed, the Department of Justice represents the government, Mr. Elkin said. By law, military medical malpractice lawsuits cannot name individual doctors or institutions as defendants, only the U.S. government itself. If such cases go to trial, a judge serves as the judge and jury.

The Seipels settled their claim against the government without filing a lawsuit, and in December they settled the lawsuit against MCG. The settlements total $3.5 million in direct payment. Neither the Army nor MCG admitted any liability in William's injuries.

The last trial in Augusta involving such a lawsuit resulted in a finding by U.S. District Chief Judge Dudley H. Bowen Jr. that a nurse's negligence led to the death of David C. Lozier Jr. in September 1996. Mr. Lozier, 64, went to the VA on Aug. 26, 1996, with an infection and died a week later from acute subdural hematoma. The attorneys settled for $450,000 in damages.

Ms. Jones said military medical facilities will soon come under the same investigation and tracking of medical mistakes as the VA, in hopes solutions can be found to eliminate the problems.

But such mishaps are not happening only at military facilities. A National Academy of Science report released in 1999 estimated 44,000 to 98,000 patients in the United States die every year because of medical errors.

The medical errors at VA and military hospitals cannot accurately be compared with those in the private sector, because reporting in the private sector has been voluntary, Ms. Jones said. Mr. Cleland and fellow Democrat Sen. Joseph Lieberman sponsored legislation to set up a systematic approach to gathering information on medical safety at VA hospitals and military facilities, Ms. Jones said.

The goal is prevention, she explained. Once mistakes are examined and analyzed they could be prevented in the future, she said.

According to the National Academy of Science 1999 report, 70 percent of deaths caused by medical errors are preventable.

Malpractice claims against the Army are lower than in the civilian sector, according to the Army's Web site Army Medicine: Quality Healthcare for America's Army.

The Army and the Dwight D. Eisenhower Army Medical Center will not discuss the Seipels' claim or any claim or lawsuit alleging medical malpractice, citing patient confidentiality, said Jennifer Chipman, information officer at Eisenhower. Under a contract with the Army, prenatal care is handled through Dwight D. Eisenhower Army Medical Center and births without complications are performed at MCG by Army physicians, but problem births are handled by MCG specialists.

"Eisenhower is dedicated to providing the best care possible," Mr. Elkins said.

If military personnel or their dependents have complaints about medical services, they have several avenues: first through the health care provider, a patient representative who serves as the patients' advocate, and each facility has an inspector general, Mr. Elkin said. If all else fails, an administrative claim can be filed, he said.

Active-duty personnel are not allowed to file a claim against the military services; only their dependants or nonactive personnel may do so, under federal laws. The government is given at least six months to investigate a claim to determine if it has merit and whether a settlement can be worked out before a lawsuit can be filed, Mr. Elkin said.

With their case now settled, the Seipels will use the money for William's care. The base settlement, coupled with structured settlements, annuities and future military medical benefits for William's care, could mean that the Army will pay $100 million over the course of his lifetime.

The Seipels hope the money will cover the real cost in caring for William for the rest of his life.

"He can't do anything for himself, not one thing," Maj. Seipel said, adding that William can't hold up his head, feed or bath himself and sometimes cannot even breathe on his own.

"It's a whole different life than we expected. It's hard."

The nursing assistants alone cost $250,000 last year, and William's parents live in fear of the toddler catching even a simple stomach virus, Maj. Seipel said. It can be life threatening.

It all could have been prevented, he said, if the Army physicians had acknowledged the need for a Caesarean section earlier. The Seipels' second son, Andrew, was born healthy 10 months ago at MCG, delivered in a planned Caesarean section.

The Seipels also are frustrated by their belief that the Army physicians would not be reported to the National Practioners Data Bank, a national clearinghouse for reports of malpractice and adverse actions against medical care professionals. Although the data bank is not accessible to the public, it is used within the profession to track doctors' disciplinary and malpractice records throughout their careers.

According to the National Practioners Data Bank records, the Army reported 307 individuals from 1990 through December 2000. In comparison, 3,080 physicians licensed in Georgia have been reported in the same period.

"The most frustrating thing about this is the Army doctors walked away on their merry way," Maj. Seipel said. "The Army was perfectly happy to write cases off."

Reach Sandy Hodson at (706) 823-3226.

Lawsuit history

Since 1995, 12 lawsuits alleging medical malpractice at military and veterans' facilities have been filed against the government in U.S. District Court in Augusta:

2000: 5 lawsuits; all pending

1999: 3 lawsuits; settled for $750,000, $225,000 and $450,000

1998: 0 lawsuits

1997: 0 lawsuits

1996: 1 lawsuit; dismissed

1995: 3 lawsuits; one dismissed, two settled for $215,000 and $162,500