Ex-Navy Dentist Blames Service for His Ailments

Dr. Ed Lampitt, a Missouri dentist who is deaf in one ear, blind in one eye and partially paralyzed on one side of his body, blames the Navy health care system for his condition. On the face of it, it would seem he has a reasonably good case for a medical malpractice suit.

But in a form-letter notification, the U.S. Supreme Court has already told Lampitt’s San Diego lawyer that the suit will never be tried because Lampitt was on active duty when catastrophe struck.

Last summer, the Supreme Court sent the curt notification to James Milliken, the lawyer representing Lampitt in his battle with the San Diego Naval Hospital, saying that it refused to hear an appeal of two lower court rulings that Lampitt could not sue the Navy over his care under terms of a 1950 high court ruling. That verdict, in a case called Feres vs. U.S., established the doctrine that stripped active duty service personnel of any right to take court action against military doctors.

Only four years before, U.S. citizens had been given the right to sue the government. In the Feres case, the high court was trying to resolve questions about how the new laws applied to military personnel. The plaintiff in Feres (pronounced “fairies”) was the widow of an Army enlisted man who burned to death in a barracks fire. Two companion cases involved medical care. The collective decision established what has come to be called the Feres Doctrine.

Wreak Havoc With the System

In essence, the doctrine holds that if service personnel had the right to sue, they could play havoc with the structured system of military discipline by filing court actions against their commanders whenever they were given orders they did not like.

Lampitt’s ordeal began in 1970 when, as a pilot trainee, he was washed out of flight school because there was something apparently wrong with his hearing. A flight surgeon, Lampitt recalled, told him he should simply stop listening to rock music. “Therein lies the first inkling that something was wrong,” Lampitt said.

Within a year, he left the Navy but rejoined when he started dental school and applied for a Navy scholarship. He was still having hearing problems but had learned to compensate. As time went on, he noticed he was having trouble with his balance, too, but in repeated visits to Navy physicians, Lampitt was assured that nothing was seriously wrong.

It was not until 1978--eight years after the initial examination--that Lampitt learned the truth. He had a slow-growing tumor--a rare, noncancerous variety called acoustic neuroma--between his right ear and his brain. Had it been discovered in 1970, Navy doctors would testify under oath later, Lampitt’s tumor could have been easily removed. But the delay had allowed the tumor to grow so big that Lampitt’s life was in danger.

By then, he was stationed aboard the San Diego-based repair ship Jason. When the diagnosis was finally made, Lampitt’s case came under the purview of Dr. Lance Altenau, Lampitt’s San Diego Naval Hospital neurosurgeon, who called in a civilian consultant, Dr. Jerald V. Robinson, the only acoustic neuroma specialist in the city.

Court and Navy records show Altenau and Robinson agreed two operations would be necessary. Both doctors participated in the first surgery, which went uneventfully in February, 1979, and when a second surgery was scheduled in mid-March, both Lampitt and Robinson said in sworn court documents, it was their understanding Robinson would be there. He wasn’t. In an affidavit, Robinson said Altenau’s office didn’t call to notify him until the night before the operation was scheduled. He was already committed to other operations.

In a telephone interview from San Diego, where he is now in

civilian practice, Altenau told a different story. He said he was told by his secretary that Robinson would attend and that, when Robinson was not there when it was time for the surgery to begin, he assumed Robinson was en route, began the case and then had to press on alone.

On the operating table, Lampitt’s condition quickly deteriorated. The tumor had grown into his brain stem and, as the surgery continued, brain tissue affecting Lampitt’s hearing, vision and movement was extensively damaged. It would require a court hearing to determine fault since some acoustic neuroma surgeries have poor outcomes--no matter what--and there are disagreements among doctors involved about whether Lampitt’s problems were preventable or unavoidable.

It was months before Lampitt could propel himself even in a wheelchair and he was left permanently blind and deaf on the right side. His paralyzed right eye deteriorated, Lampitt said, because nurses and corpsmen failed to keep the cornea moist.

Eventually, the Navy permitted Lampitt to have a civilian operation in which a spring was implanted in his right eyelid so he could blink but the Navy refused to permit a cornea transplant--a decision that Lampitt’s ophthalmologist, Dr. Robert Levine, said in a telephone interview he found mystifying. “It really is worth a shot,” Levine said. “There (still) is a reasonable chance it would succeed.” Lampitt said that when he told his superiors he wanted to pay for the cornea surgery himself, they told him they would court-martial him if he had the operation.

‘Utter Disbelief’

The final straw came when a Navy medical review board ruled that Lampitt was fit to return to active duty. The decision so enraged Rear Adm. J. J. Thomas Jr., head of the Navy Dental Corps regional office, that he filed a harsh memorandum saying he viewed it with “utter disbelief.” After a second hearing, the Navy reversed itself and awarded Lampitt an 80% retirement disability pension. In 1981, 11 years after his tumor should have been recognized, a Navy medical consultant testified in the second hearing, Ed Lampitt got his disability discharge.

He filed suit, knowing he would almost certainly lose the fight under the Feres Doctrine because, he said, “I realized the situation I had been through, and I realized the travesty of justice of not allowing people to do anything about this. I am trying to prevent the next 18-year-old kid (who has a medical problem in the service) from ending up in the grave. I realize this is an ongoing problem, not an occasional one.”

The Pentagon, defending Feres today, has argued repeatedly in the last six months that chaos would result from granting servicemen the right to sue if they are mistreated by doctors and that letting them take such claims to court would cause morale to drop. Pentagon top officials also contend that because a serviceman who is injured by military doctors can become eligible for a disability discharge that pays modest pension benefits for life, money compensation isn’t necessary.

The Defense Department position angers Ed Lampitt, whose disabilities have made it impossible for him to obtain health insurance that could pay for the cornea transplant.

Slowly, he has recovered from the effects of the paralysis so he can earn a living practicing dentistry, but any further serious health problem could ruin him financially, he said. (His Navy pension is $1,758 a month.)

Lampitt’s story is not unlike those of dozens of former service personnel who say they have been victimized by military medicine. An outpouring of such tales during the last several months has already prompted the House to pass a bill that would reverse the Feres Doctrine and grant servicemen the right to sue for malpractice under certain conditions.

Under the House measure, sponsored by U.S. Rep. Dan Glickman (D-Kan.), military personnel could sue if they had suffered provable physical injuries during medical treatment. That would prevent, Glickman said in an interview here, litigation resulting, for instance, from a physical examination in which a doctor ruled a prospective pilot unfit for flight training. Also prohibited would be any litigation related to wartime treatment. Only medical care rendered in the continental United States would be covered.

Passed Overwhelmingly

Glickman held a series of hearings on the House measure before it passed overwhelmingly last month. In the Senate, a similar bill sponsored by Sen. Jim Sasser (D-Tenn.) is bottled up in committee and, according to Sasser aides, is unlikely to emerge for floor debate this year. There has been speculation that, as the Senate races to adjournment between now and Christmas, an attempt may be made to attach the Sasser bill as a rider to one of the Defense Department appropriations measures that still must come up for final action.

Glickman and Sasser dismiss Pentagon arguments against the bill as unrealistic. In an interview, Glickman noted that the spouses and children of active duty personnel already are permitted to sue, as are retired military personnel and their immediate families who are allowed to use military health facilities for all of their health care.

Sen. Pete Wilson (R-Calif.), who has also held subcommittee hearings on the general problems of military medicine, and Glickman both said they are certain President Reagan would veto the bill if it passed the Senate. Defense Secretary Caspar Weinberger--as well as top medical officials of the Pentagon and all three services--have vocally opposed it.