Appellate Court Rejects Malpractice Suit in Case of Sailor Who Committed Suicide

SAN FRANCISCO —  A federal appeals court Wednesday reluctantly rejected a medical malpractice suit against the government in the San Diego case of a sailor who committed suicide three months after going to a Navy hospital with slash marks on his wrists.

However, the court let the sailor’s widow and child sue over the hospital’s alleged failure to counsel them after his death.

The suit blaming Navy Hospital in Balboa Park for the December, 1987, suicide of Petty Officer Kelly Persons is barred by a 1950 U.S. Supreme Court rule forbidding suits over injuries “incident to military service,” said the 9th U.S. Circuit Court of Appeals.

That doctrine is “unsound and illogical” but has become well-entrenched in the law, Judge Dorothy Nelson said in the 3-0 decision.

But she said the doctrine does not prohibit suits by non-military personnel over independent misconduct by a branch of the armed services. As a result, Nelson said, Persons’ wife, Robin, and their son, Timothy, who was 4 at the time, can sue the government for the hospital’s purported failure to provide them counseling after the suicide.

The family’s lawyer, Thomas Massey, said he was “pleased that the Court of Appeals saw to it that the needs of a bereaved widow and child . . . were respected and their own particular right to treatment was upheld.” He said he hopes to appeal the unfavorable part of the ruling to the Supreme Court.

The suit said Persons, stationed in San Diego, went to the hospital’s emergency room in September, 1987, with slash marks on his wrists from a suicide attempt. He was released after a few hours, allegedly without adequate counseling or treatment, and killed himself three months later.

The suit said the hospital had contributed to the suicide by the lapses of its staff and had violated the Navy’s duty to military dependents by failing to warn Persons’ family of his depressed state or provide them counseling at any time.

U.S. District Judge Judith Keep dismissed the suit, relying on the Supreme Court’s longstanding Feres decision, which bars damage suits against the government for injuries to military personnel during activity related to their service. Among the reasons stated by that court and others for the doctrine is the fear that suits over military decision-making would damage military discipline.

The family appealed, saying the ban should not apply to a suit by non-military survivors of an off-duty sailor for misconduct that had little connection to the military discipline system. But Nelson said virtually any suit that involves military service judgments is barred.