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In a rare settlement under the Military Claims Act, the Navy and the Treasury Department have agreed to pay $3.7 million to an accountant who suffered severe brain damage while a patient at the U.S. Naval Hospital in Rota, Spain. The agencies paid $1.1 million up front in mid-April. They also will buy an annuity providing plaintiff James McKean $60,000 a year and will set up a trust for his medical expenses, said plaintiff’s attorney David C. Smith, of the Winston-Salem, N.C., office of Atlanta’s Kilpatrick Stockton. The cost to the government will be $3.7 million. The ultimate payout, Smith said, will be slightly more than $10 million. McKean v. Department of the Navy (Military Claims Act Administrative Procedure). McKean was an independent contractor working for the Navy in Spain when a doctor attempted to remove tumors on his carotid artery and lacerated the artery, said Smith. Clamping the artery stopped the blood flow to McKean’s brain and set off a stroke. After extensive therapy, Smith said, McKean is paralyzed on the right side of his body, is blind and has severe cognitive difficulties. McKean was 30 years old at the time of the July 24, 1996, operation. BIG OBSTACLES The settlement was reached despite several substantial obstacles to McKean’s claim, Smith said. The plaintiff was barred from suing the surgeon under a federal law, passed in 1974, that immunized military medical personnel. He was also barred from suing under the federal Tort Claims Act — the standard remedy for military personnel claiming medical negligence — because the operation was performed in a foreign country, said Smith. The only option left was to file under the Military Claims Act — a move that carried its own set of pitfalls, said Smith. These claims are handled by administrative procedure only and are decided not by an impartial judge or jury, but by the military. “The government itself gets to judge whether the government was negligent,” he said. In addition, there is no way to appeal an adverse decision, he said. “There is no judicial recourse.” To overcome any bias and win the settlement, Smith said, the plaintiff’s team provided thorough documentation of the surgeon’s failures, including extensive expert opinions, and provided a detailed life plan to bolster the damages claim. The settlement was ultimately paid after a series of approvals by government agencies, including the Judge Advocate General, the Pentagon, the Navy and the Treasury Department. The Navy will pay $100,000. The rest will come from the U.S. Treasury.

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