Do military members need more rights? Patient navigates the legal landscape after a stillbirth at a military medical center

By Stephanie Srakocic | Fact-checked by Davi Sherman
Published September 19, 2023

Key Takeaways

  • Navy chaplain Mercedes Petitfrere is appealing the Defense Department's dismissal of her malpractice claim that centers on a 2018 stillbirth.

  • Active duty service members are not permitted to bring lawsuits against physicians or facilities, but they can file claims with the Defense Department.

Navy chaplain Mercedes Petitfrere’s medical malpractice claim, initially filed in 2020 regarding care she received at Naval Medical Center Camp Lejeune, was rejected by the Navy’s Office of the Judge Advocate General and subsequently rejected by the Defense Department’s Military Medical Malpractice Claims Appeals Board in April 2022. Her story comes to light after coverage in the Washington Post.[][]

In June 2022, Petitfrere filed a lawsuit with the U.S. District Court for the District of Columbia, asking a federal judge to vacate the military’s initial denial of her claim. Last month, U.S. District Judge Royce Lamberth dismissed her case. Petitfrere has already appealed the decision.[][]

The case centers on a December 2018 incident. At the time, Petifrere was 20 weeks pregnant. She was 35, and her pregnancy was considered high-risk due to her age. On December 17, she was rushed to the Naval Medical Center Camp Lejeune’s emergency room. She was experiencing severe abdominal pain and was having difficulty walking. A midwife attributed her symptoms to fibroids. Petitfrere, however, said the fibroids had been present for a long time and had never caused any pain.[]

In the claim she later filed against Lejeune, Petitfrere stated that she was told fibroid pain during pregnancy was normal. She claimed the hospital ignored her distress and expressed no concern about the discovery that she was experiencing contractions. Petitfrere was given prescription-strength Tylenol by the midwife and discharged.[] 

Petitfrere returned to the hospital two days later. She was still experiencing contractions and was spotting. Medical records from this visit show that her cervix was rapidly shortening, a sign of preterm labor. In her claim, Petitfrere alleged that her symptoms were again dismissed by the medical staff at Lejeune. She stated that she was treated like a “nuisance,” and was told that both she and her baby were fine.[] 

The following day, Petitfrere was in severe pain, unable to stand on her own or dress herself. Petitfrere refused to go back to Lejeune. She and her husband, fellow Navy chaplain Louis Petitfrere, drove to a nearby civilian hospital. By the time they arrived, Petitfrere was in too much pain to answer any questions. She delivered a stillborn son 3 hours later. He weighed only 277 grams and was 9.5 inches long. The Petitfreres had already chosen a name for their son: Primas.[]  

Petitfrere began looking into filing a medical malpractice suit after Primas’s funeral. She was surprised to learn that she would be unable to file a standard medical malpractice lawsuit due to a law that prevents active duty United States service members from suing for any injuries or harm they suffer that arise from their military service, whether it occurred in the line of duty or during medical treatment at a base hospital. Instead, service members are required to file claims with the Defense Department.[] 

Petitfrere filed a claim in 2020, alleging that staff at Lejeune had violated standards of care. She said that staff minimized her discomfort and were extremely hesitant to take her pain seriously and provide stronger pain medication. Petitfrere’s claim against Lejeune alleges that the staff’s actions were racially motivated.[]

Petitfrere’s claim included testimony from OB/GYN James Wheeler, MD. He examined Petitfrere’s medical records and concluded that Lejeune’s staff failed to recognize her symptoms and risk factors for preterm labor. He noted that her cervix had shortened from 4.46 centimeters to 3.31 centimeters in just 3 minutes and stated that she should have received treatment for preterm labor.[] 

Petitfrere’s lawyer received an email in December 2021, stating that the malpractice claim had been rejected. Petitfrere appealed, but her appeal was dismissed in April 2022. In June 2022, Petitfrere filed a lawsuit with the U.S. District Court for the District of Columbia, asking a federal judge to vacate the military’s initial denial of her claim. This lawsuit was dismissed in August 2023. Petitfrere has already filed another appeal.[][] 

Malpractice and the military

In 1950, the Supreme Court ruled that the government could not be held liable “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”. This decision, known as the “Feres doctrine,” is controversial. It prevents widows from suing the government for deaths that occur during active duty, and, for decades, it prevented malpractice claims in cases such as Petitfrere’s.[][]

“Military malpractice claims against military doctors had been barred since the 1950s,” says malpractice lawyer Anna Czarples, “and in 2020 [an] act was signed into law by President Trump that gave active duty military members the ability to sue those doctors. But when I say sue, that’s actually not correct. They don’t have the right to sue; they have the right to bring claims.”

It was only in 2020, with the addition of the Stayskal Act, that members of the armed forces were able to sue the government for damages in malpractice cases. The Stayskal Act permits active duty service members to file medical malpractice claims with the Defense Department. However, these claims are not lawsuits; they are administrative claims that the Defense Department investigates and then rejects or approves claims.[] 

“The Feres Doctrine still stands,” explains malpractice attorney Mike Lossitrito. “Service members are not allowed to bring forth individual civil suits in court, but what happens now is that the Department of Defense has this claims process set up for malpractice.”

Settlement funds can be awarded if claims are approved. The Defense Department pays all claims below $100,000 directly to the member or beneficiary. The Treasury Department pays all claims above $100,000.[]

For physicians, military malpractice cases look very different from those stemming from non-military facilities. Physicians who work at military hospitals and medical centers cannot be sued directly. While this is true for any federal healthcare facility, military medical centers retain the additional layer of the Defense Department’s claims process. These malpractice claims don’t go to trial.

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