The Army allegedly missed this soldier’s cancer diagnosis for 2 years. The VA found it within days
A former infantry soldier is mounting a medical malpractice lawsuit against the Army alleging that military doctors mistook his testicular cancer for a hernia for roughly two years.
It all began with a medical check.
Carson Thomas, a healthy and fit 20-year-old infantryman who had joined the Army after a brief stint in college, figured he should tell the medics about the pain in his groin he had been feeling. It was Feb. 12, 2012, and the senior medic looked him over and decided to send him to sick call at the base hospital.
It seemed almost routine, something the Army doctors would be able to diagnose and fix so he could get back to being a grunt.
Now looking back on what happened some seven years later, it was anything but routine.
According to a timeline of events provided to Task & Purpose by his attorneys with the Tampa, Florida-based Whistleblower Law Firm, Thomas was first seen by base doctors on Feb. 24 at Fort Carson’s Evans Army Community Hospital in Colorado, where he was told he likely had a hernia.
Thomas, a grunt with Bravo Company, 1st Battalion, 12th Infantry Regiment, 4th Brigade, was placed on a “light profile,” designed to limit his physical activity, and preclude him from strenuous training and then sent on his way, but the pain continued.
Sometimes, it would come on suddenly, in the form of a dull throbbing in his groin, even if he was just sitting or resting. Whenever he’d work out, or do strenuous activity, a sharp stabbing sensation quickly followed, which sometimes left him doubled over on the ground.
“I’ve never been stabbed, but if I had to guess, that’s what it feels like,” he told Task & Purpose.
Thomas’ medical records, also provided by his attorneys, show that he visited base doctors at least eight times between Feb. 2012 and April 2014 to specifically discuss his hernia diagnosis, and to find answers as to why the pain wouldn’t go away. The visits typically resulted in a prescription of Ibuprofen, and Thomas was eventually moved to a “dead man” profile, barring him from physical exercise, which as an infantryman meant “I couldn’t do my job,” he added.
“I stayed on a dead man profile for the majority of the time. If I wasn’t on dead man profile, I was still on a lighter profile.”
In pain and unable to train or deploy, Thomas was trapped in a sort of limbo. He was sure something was wrong, but said he felt frustrated that his concerns weren’t being taken seriously by Army doctors.
“That type of care, they just treated me like I was a dude just trying to get on profile,” he said. “That’s how I felt the whole entire time. They just treated me like a piece of shit.”
This trend continued for the rest of his time in the Army, and included a March 2014 phone consult and an in-person appointment with the hospital’s general surgeon in April, but still the diagnosis remained the same. The hospital’s general surgeon’s notes, which were provided to Task & Purpose by Thomas’ attorneys, read: “From my standpoint he should not have any physical limitations due to the small occult inguinal hernia.”
On Dec. 19, 2014 Thomas was honorably discharged as a specialist, and during his exit medical evaluation, he again mentioned the pain in his groin, but was told to seek help from the Department of Veterans Affairs if it continued.
It did, and then it got worse.
Back home in York, South Carolina on April 12, 2015, Thomas was rushed to the emergency room at Jennings Bryan Dorn VA Medical Center in neighboring Columbia for severe swelling in his neck and around his shoulders.
“I thought I broke my collarbone, and I went to the ER at the VA in Columbia, South Carolina, and they did some X-rays, and it turned out it wasn’t my collar bone that broke, it was a lymph node in the lower part of my neck, where my collar bone meets my neck,” Thomas explained. “A lymph node exploded there, and that’s what caused the giant lump and swelling.”
By April 14, care providers at the Dorn VA informed Thomas that they had found the cause for the swelling, and the years of pain: He did not have a hernia; he had stage 3, going into stage 4, germ cell testicular cancer.
Over the past several years the cancer had spread from his right testicle and climbed up the left side of his body like a vine, wrapping itself around his kidney, before moving to his liver, then under his heart, around his lungs, neck, and the surrounding lymph nodes.
It took the VA days to catch something that the Army had apparently missed for years.
Indeed, just five days after Thomas went in for an ultrasound appointment at Fort Carson on Feb. 22, 2014, a medical report provided to Task & Purpose indicated that a “small abdominal wall defect measuring approximately 6 mm, containing fat” was found, but no additional steps were taken.
“No one cared enough to look into my cancer or to look into my situation, past a hernia,” he told Task & Purpose.
Now he intends to hold the Army accountable for the alleged mistake, but a decades-old legal rule that bars service members from suing the government for negligence or wrongdoing means the chances of even having his case heard are slim.
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On April 23, 2019, Thomas and his attorneys filed a medical malpractice claim alleging that the Army missed his cancer, and mistook the disease for a hernia for roughly two years.
“In Carson’s instance, they confirmed on multiple occasions that he did not have hernias,” Thomas’ attorney, Natalie Khawam told Task & Purpose. “In fact, it was noted that there was a ‘fatty mass’ near inflamed lymph nodes.”
Additionally, Thomas’ oncologists at the VA believe that his cancer had been present in his body for at least two and a half years before it was caught in 2015.
The service has until December to respond to the claims of medical malpractice, but due to a 1950 Supreme Court precedent known as the Feres Doctrine, it’s likely that Thomas’ case will be dismissed.
The Feres Doctrine is an interpretation of the Federal Tort Claims Act — a law governing how citizens can sue the government. Established in 1950 during Feres vs. United States, the Supreme Court ruled that the federal government could not be held liable “for injuries to members of the armed forces arising from activities incident to military service.”
In essence, service members and their families are barred from suing the military for injury or death brought on by their service.
The Feres Doctrine was ostensibly created to protect the military from having command decisions second-guessed in civilian courts; and because a system for compensating service members and their families for injury or death already exists in the form of disability compensation and life insurance payments.
In the years since Feres was established, the legal rule has been broadly applied to instances far outside the scope of combat operations: from incidents that occur during training; to workplace violence; sexual assault; and military medical malpractice.
“It’s so important that we as a society stop discriminating against our own men and women in the military and provide them the same rights we all enjoy,” Khawam told Task & Purpose.
“Because of the unfair Feres Doctrine, another great American patriot has suffered from malpractice — and has no protections or legal recourse like the rest of us.”
Critics of the doctrine argue that the rule, and how it defines “incident to service” has been stretched far beyond its original intention.
“It makes a lot of sense in the context of a battlefield environment or a combat zone environment if somebody’s making a quick decision,” said Lloyd Bell, a former Army lawyer who is now a founding partner and a medical malpractice attorney with the Bell Law Firm in Atlanta, Georgia.
In the case of a battlefield medical procedure gone wrong, “it would be harmful to good order and discipline if that person could be exposed to possible liability,” Bell said. But where it doesn’t fit, and where Bell and others have voiced concern, is when Feres is applied to a non-battlefield environment, like a stateside hospital far from the dangers and pressures of combat, where both service members and civilians are treated.
And then there’s the double standard it creates: One set of rules for civilians, and another for service members.
“When you have stateside hospitals that serve both service members and retirees, family members, children, and if any civilian gets harmed in those hospitals, there’s recourse for medical malpractice action,” Bell explained. “If a service member gets harmed in those hospitals, then there’s no recourse, and the logic of the Feres Doctrine doesn’t apply in that setting, and what it does ironically is it harms the people who are sacrificing the most for us.”
The Feres Doctrine isn’t without its defenders, chief among them the Department of Defense. According to a Pentagon statement provided to Task & Purpose, the military’s defense of Feres centers on the following:
- That service members are already covered through a uniform no-fault compensation system which applies to all service members;
- That repealing the doctrine would create “unsustainable inequity of allowing some military members to sue” while others, like those injured in combat, cannot;
- Allowing lawsuits could lead to defensive medical practices, and might jeopardize patients’ quality of care.
It’s unclear just how many service members and their families have run afoul of the Feres Doctrine. Lisa Lawrence, a Department of Defense spokeswoman, told Task & Purpose that the Pentagon “has not compiled data on submitted claims that were denied because of the Feres Doctrine.”
While the Army “tracks all adverse patient and system events, some of which result in claims of medical malpractice,” according to Maura Fitch, a spokeswoman with Army Medical Command, the service did not provide data on the number of claims made in recent years. Additionally, the Army declined to provide a statement on Thomas’ specific case, given the service’s policy to not discuss matters that may be pending litigation.
However, the Army has begun “informally” tracking the number of medical malpractice claims that have been denied due to the Feres Doctrine. According to Fitch, in 2018, the Army had nine claims for medical malpractice that were denied under the Feres Doctrine.
As it stands, military medical malpractice cases are practically unwinnable in a courtroom due to Feres. For Thomas, and plaintiffs like him, the only real chance of winning a lawsuit rests in Washington.
All paths lead to Capitol Hill
Because the Feres Doctrine is a Supreme Court precedent it can only be changed two ways: The nation’s highest court could reverse the initial 1950 ruling; or Congress could amend the Federal Tort Claims Act to allow for lawsuits in specific cases, like military medical malpractice.
Though progress has been made on both fronts in the last year, it’s a process that takes time, and comes with no guarantee of success.
This year, the Supreme Court refused to hear a petition brought by Walter Daniel, whose wife Navy Lt. Rebekah “Moani” Daniel, died during labor on March 9, 2014 due to alleged medical malpractice at Naval Hospital Bremerton in Washington. On May 20, 2019, Daniel’s four-year fight to have his case heard before the Supreme Court — which only accepts about 80 new petitions per term — came to an end when his request was denied, Task & Purpose reported in May.
On the legislative front, there’s hope for military medical malpractice victims in the form of a bill named after Army Sgt. 1st Class Richard Stayskal, a Green Beret whose lung cancer was overlooked by military care providers at Womack Army Medical Center on Fort Bragg, North Carolina for five months. Stayskal is now terminal and his case has become a focal point in the fight for military medical malpractice reform, Task & Purpose reported in November 2018.
On July 12, Stayskal’s namesake legislation passed as part of the House’s version of the 2020 National Defense Authorization Act. The bill now faces an upcoming conference committee on the NDAA, and has to make it through that process before it has a chance of landing on the president’s desk where it can be signed into law.
But for Thomas and other medical malpractice victims who are at the very early stages of mounting a lawsuit against the government, there are few immediate solutions.
‘I got cheated from what I wanted to do and what I wanted to be’
After Thomas’ cancer was diagnosed in April 2015, he began treatment.
Over the next year he endured seven rounds of chemotherapy, and underwent a battery of tests, and a nine and a half hour-long operation in October 2015 that involved removing his right testicle, and “scraping” cancerous cells away from his diseased organs.
“They removed the cancer around my kidney. They removed it around my heart. They couldn’t get the tumor that was in my liver, but it’s dead. They biopsied it,” Thomas said. “Out of all the cancer they took out of me, they had to leave a small percentage below my heart, because I was already on the table for so long.”
Following the surgery, Thomas had to return to the hospital due to complications and had to have a bile leak drained from inside his abdomen. The treatment took a greater toll than the disease had over the previous years, Thomas said.
“Well, believe it or not, before I found out I had cancer, ironically, other than dying, I was in the best shape of my life,” he told Task & Purpose. “I was getting fresh out of the army. I’m only 5′ 7′ — I was 175 pounds of muscle.”
By the time Thomas fully recovered from the October surgery, his skin had turned grey and yellow, and he’d shed nearly 50 pounds.
These days his health has rebounded somewhat, and his cancer is in remission since he finished treatment in March 2016, though his care providers at the VA continue to watch it closely, should it come back, Thomas told Task & Purpose.
“I have experienced many issues with daily life,” he said “I have chronic pain, still struggle with diet, joints are weaker, chemo brain makes it hard to focus and I have noticeable memory loss. I do what I can and focus on trying to keep my health as good as it can be from here on within my capabilities. I can no longer reproduce and the aftermath from my cancer does affect my personal life.”
As for his lawsuit against the Army, and the alleged medical malpractice that took place while he was in, he said he feels a mix of emotions.
There’s regret over being “an infantryman who never got to deploy,” Thomas said.
“In my eyes, I’m the black sheep out of my flock, my tribe,” he said. “All the infantry guys, we live for deploying, and I missed out on two deployments because of my hernia at the time. That sucks. I got shafted. I got cheated from what I wanted to do and what I wanted to be.”
And there’s also anger over the fact that the Feres Doctrine deprives him of the opportunity to have his day in court — of the chance to hold his military care providers responsible for the alleged negligence.
“All my life I’ve been held accountable for my actions,” Thomas said, adding that “in the Army they held me accountable for everything, but they don’t hold these people accountable for the way they fuck up.”
“It’s just not acceptable, and it needs to stop,” Thomas said. “I don’t want anyone else to go through what I had to go through.”