A Navy lieutenant sentenced last year to life in prison for the 2015 murder of his wife has gotten permission from an appellate judge to file an extended appeal in the case, one that has spanned international borders over nearly a decade.
Read Full Article Published by Navy Times
Press Release: Federal Court Rules Medical Malpractice Claims Against Department of Defense Tolled By Servicemembers’ Civil Relief Act
On October 31, 2023, the Honorable Rudolph Contreras, District Judge for the United States District Court for the District of Columbia, denied the government’s motion to dismiss in Larumbe v. Secretary of Defense, holding that medical malpractice claims against the Department of Defense (“DoD”) are tolled by the Servicemembers’ Civil Relief Act (50 U.S.C. § 3936). The Court’s ruling marks a significant victory not only for the plaintiffs in this action, but for all those who seek to hold the DoD accountable for medical malpractice under 10 U.S.C. § 2733a.
In January of 2019, Maria Martinez, who was on active duty in the United States Army, became concerned about her health and requested a medical screening for breast cancer. An oncologist evaluated Martinez. Based on Martinez’s family history, possession of the BRCA2 gene mutation, and physical symptoms, the oncologist recommended that Martinez’s primary care physician perform a diagnostic MRI to determine whether Martinez had breast cancer. Martinez’s primary care physician, however, incorrectly ordered a screening, rather than a diagnostic, MRI. Because of this negligent clerical error, DoD’s health insurance denied Martinez the screening MRI on three separate occasions. Each time, Martinez was told she did not meet the criteria for a screening MRI. Inexcusably, Martinez’s primary care physician also failed to order any different type of procedure to determine whether Martinez had breast cancer. Ten months after Martinez first requested breast cancer testing, she was admitted to an emergency room with shortness of breath. Finally, a doctor gave Martinez a diagnostic examination, including a biopsy, which confirmed that Martinez had breast cancer. By this stage, though, there was nothing that could be done – Martinez’s breast cancer had become so advanced that it was incurable. Tragically, and as a direct result of incompetent medical treatment she received from DoD providers, Martinez died at the age of 26 in December of 2021.
A month before her death and while still serving in the military, Martinez filed a claim for medical malpractice with the DoD. The Department of Army Tort Claims Division denied Martinez’s claim, asserting that her claim was untimely filed. After her death, Eduardo Larumbe and Christopher Fernando Montas Correa —Martinez’s father and husband, respectively – appealed the denial to the Defense Health Agency’s Military Malpractice Claim Appeals Board, which affirmed the denial, again based on untimeliness. Plaintiffs then sued under the Administrative Procedure Act (5 U.S.C. § 701 et seq.). requesting that the District Court set aside as unlawful the DoD’s denial of Martinez’s medical malpractice claim under 10 U.S.C. § 2733a.
The government moved to dismiss the case, arguing first that 10 U.S.C. § 2735 bars judicial review of the plaintiffs’ medical malpractice claim, and second that the plaintiffs’ claim was not timely filed, because 10 U.S.C. § 2733a requires actions to be filed within two years of accrual.
The Court denied the government’s motion to dismiss, rejecting both of the government’s arguments. First, the Court determined that while 10 U.S.C. § 2735 does bar judicial review in certain instances, that bar of judicial review does not extend to instances where a plaintiff’s due process rights have been violated. The Court held that in the present case, the plaintiffs had asserted a violation of their due process rights, because the government failed to consider the tolling of the statute of limitations for Martinez’s medical malpractice claim, as required by the Servicemembers’ Civil Relief Act. For this reason, the Court also rejected the government’s second argument, and held that the tolling provisions of the Servicemembers’ Civil Relief Act apply to military medical malpractice claims brought under 10 U.S.C. § 2773a. Because Martinez was serving in the military at all times relevant to the litigation, the Servicemembers’ Civil Relief Act tolled the statute of limitations, and her claim was timely filed.
Although this is a major victory for Eduardo Larumbe and Christopher Fernando Montas Correa, the fight is not over. The firm is proud to represent these men and carry Maria Martinez’s legacy of service. We will not rest until justice is done.
If you or a friend or loved one in the service has experienced medical malpractice at the hands of DoD medical providers, the Servicemembers’ Civil Relief Act can help ensure that your claim is timely filed and that you receive the relief you deserve.
For more information, please contact:
LAW OFFICES OF DAVID P. SHELDON, PLLC
100 M Street SE, Suite 600
Washington, DC 20003
(202) 546 9575 (w)
(202) 546 0135 (f)
www.militarydefense.com
I wish to express my deep gratitude to the Law Offices of David P. Sheldon. As a non-native female soldier, I found it very difficult to navigate the military to correct records and reverse an “other than honorable discharge.” The errors in the military records cost me opportunities to find employment and damaged my self-esteem, feeling shame from the harsh realities of this blemish on my military service and records. In a word, the wrongful records kept me from pursuing a life free from shame and distrust of others as a foreign-born citizen and soldier.
In 2016 I reached out to the Law Offices of David P. Sheldon. I found the team to be supportive, compassionate and kind to me. Their heart-felt interest in helping me get the records corrected gave me hope that I could mend the wrongs that had been done against me. Needless to say what a great win it was to receive my Certificate of Honorable Discharge. I can now apply for jobs with the confidence that I have a solid honorable discharge in my military service records. Additionally, I have gained partial relief in the ABCMR, the final victory in this very difficult time.
Sir, there are no words that come close to expressing the depths of my appreciation. I admire the team in their abilities to navigate this ABCMR. My future has been returned back into my own hands and for this I am so grateful. Thank you for restoring my dream, and my dignity.
As a female soldier, foreign born where my language and cultural abilities are not as sophisticated as an American born citizen, I found compassion and kindness in the face of adverse conditions that were not easy to navigate. I highly recommend the Law Offices of Attorney David P. Sheldon, PLLC.
O.R., Army Sgt. US Army Female Non -Commissioned Officer
of Special Operations Command, Freedom Fighter/Warrior.
First loss of a baby, then loss of legal rights.
After enduring a stillbirth, a Navy chaplain discovers she can’t sue a military hospital for medical malpractice.
Article: Washington Post, Ian Shapira, September 14, 2023
Service Members Facing Disability Discharge for 9/11 Related Duty May be Eligible for Combat Related Special Compensation
The Army Physical Evaluation Board (PEB) at Fort Sam Houston, San Antonio Texas awarded Combat Related Special Compensation (CRSC) to a New York Army National Guard Soldier, Major William F. Morrissey, ANG, who was called to active duty to respond to the September 11, 2001 terror attack on the World Trade Center Towers. In 2017, Major Morrisey, while on active duty, was diagnosed with metastatic cancer caused by exposure to carcinogens during his service in September 2001.
CRSC allows a Solider his full retirement pay plus his Veteran’s Administration Disability Compensation for those conditions determined to be combat related. Without CRSC a retirement eligible Soldier would have to waive retirement pay up to the amount of disability pay he elects to receive. The more severe a Soldier’s injuries and the greater the Soldier’s disability rating, the bigger the difference CRSC can make in the Soldier’s total monthly pay after retirement. While a non-disabled Solider or very moderately disabled soldier can usually work after retirement and supplement retirement pay, a very severely disabled soldier may not have that option. For Soldiers injured in combat, Congress wanted to recognize their sacrifice by allowing concurrent receipt of retirement and disability pay for the combat related disability.
In the context of CRSC, “combat related” means resulting from (1) armed combat, (2) hazardous duty, (3) simulated war, or (4) an instrumentality of war. While the Army PEB agreed that the Soldier’s condition was service related, the board did not agree that the Soldier’s injuries warranted CRSC, because, according to the PEB’s original findings, the soldier’s injury was not combat related.
Our office filed a petition with the Army PEB to request reconsideration of their initial denial of CRSC, and to request a formal PEB if CRSC was not awarded, arguing that the Soldier’s injuries were the result of combat because terrorist attacks qualify as combat, the Soldier engaged in hazardous duty when he worked as a first responder at a demolition site, and that the planes flown by terrorist on September 11, 2001 were used as instrumentalities of war. The PEB affirmed its original findings that the Soldier’s injuries did not qualify as armed combat and that the injuries were not caused by an instrumentality of war. The board, however, granted Major Morrissey’s petition on the grounds that he was engaged in hazardous duty and therefore qualifies for CRSC. In instructions that set rules for CRSC, the Department of Defense says that hazardous duty “need not be limited to aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty.”
Sadly, Major Morrissey passed due to his disabilities. Now, the firm is engaged to represent Major Morrissey’s wife, Jennifer, to obtain benefits Jennifer and the Morrisey family may be entitled because they should be recognized as a Gold Star family. It is our privilege to have represented Major Morrisey and his family. We will not give up until justice is obtained.
For more information on military appeals related to hazardous duty and legal rights, please contact:
LAW OFFICES OF DAVID P. SHELDON, PLLC
100 M Street SE, Suite 600
Washington, DC 20003
(202) 546 9575 (w)
(202) 546 0135 (f)
www.militarydefense.com
I want to thank Attorney David P. Sheldon, and all his team, for all the help in my case. Thank you Very very much!
O. R-K, SGT, USAR
The Law Firm of David P. Sheldon PLLC is proud to announce the very successful completion and accomplishment of Melissa Diaz, passing the District of Columbia’s bar with flying colors! In 2022, Melissa joined the firm where she has been a valued law team member. With the completion of the bar, upon admission, she will officially become a District of Columbia licensed attorney. Melissa continues to serve our clients with her very high level of professionalism, integrity and outstanding enthusiasm.
Congratulations on your success, Melissa! BZ!
NBC Dateline Segment The Window aired February 26, 2023.
“The Window” Claude Cloosen, Arthur Scorry, attorney David Sheldon, and others are interviewed by a grieving father who wants answers concerning his daughter’s death following a fall from a Belgian penthouse.
The Window is available on NBC/Dateline at this link.
The sneak peek for Sunday, February 26th, 2023 is now available. The Law Offices of David P. Sheldon are filmed in the Dateline segment “The Window.”
NBC broadcasts an episode of the series “Dateline” titled “The Window“.
