Military

New bill would finally allow servicemembers to bring medical malpractice suits against the government

December 17, 2019

“When doctors fail to perform or woefully misread tests, when nurses botch routine procedures, when clinicians ignore and disregard pain, servicemembers deserve their day in court,” says Rep. Speier regarding the proposed legislation.

Sergeant First Class Richard Stayskal had been having trouble breathing for months. In January of 2017, he finally paid a visit to the Womack Army Medical Center at Fort Bragg, North Carolina. A chest scan led to a pneumonia diagnosis, and Stayskal went home.

A few months later, Stayskal showed up in the emergency room unable to breathe. A doctor picked up the old scan and noticed a mass – indicative of a tumor in Stayskal’s lung that the doctors at Womack had overlooked. Records had also shown a recommendation for a biopsy, but Stayskal and his family were never notified. By this time, the tumor in Stayskal’s lung had doubled in size and spread to other organs in his body.

“I was so angry, I reported the negligence to the hospital commander,” says Sergeant Stayskal. “And the response I got was a total lack of concern. Nothing was done (1)." Stayskal is now receiving treatment after his stage IV lung cancer diagnosis in June 2017, but because the cancer was detected late, it is now incurable.

Typically, such instances of negligence would allow individuals like Stayskal to sue the doctors involved for missing the tumor or failing to tell him about it. But a 1950 Supreme Court decision, which created the Feres Doctrine, prevents servicemembers from suing the military for negligence or malpractice. But that could change soon enough.

“Must-pass legislation”

After hearing testimony from victims of military medical malpractice, including Richard Stayskal, a bipartisan group of House lawmakers announced new legislation in 2019 to do away with the legal rules prohibiting such suits. The new bill, sponsored by Rep. Jackie Speier and named for Stayskal, aimed to create an exemption to the Feres Doctrine and allow servicemembers to have their claims heard in the justice system.

“When doctors fail to perform or woefully misread tests, when nurses botch routine procedures, when clinicians ignore and disregard pain, servicemembers deserve their day in court (2),” says Rep. Speier regarding the proposed legislation. She adds, “We’re not talking about special treatment. We’re talking about giving servicemembers the same rights as their spouses, federal workers, and even prisoners (3).”  

Dr. Dwight Sterling, an Army lawyer and CEO of the Center for Law and Military Policy, adds “Military officials should be accountable to courts for everyday, non-combat related negligence… The judicial process guarantees injured parties access to information, providing them a way to get the details about the accident or misconduct that hurt them. Internal processes run by the military do not have such guarantees and are subject to command level manipulation.”

The bill ran into opposition in the Senate, though, and a compromise was reached to allow malpractice claims, like Sergeant Stayskal’s, but not in the regular federal courts. “Such claims would instead be addressed through an existing Defense Department adjudication agency that handles Military Claims Act lawsuits (4).” This compromise, added as a provision to this year’s National Defense Authorization Act, is considered must-pass legislation that is expected to become law this month.

1. https://www.nytimes.com/2019/12/11/us/military-lawsuit-malpractice-feres.html

2. https://www.militarytimes.com/news/pentagon-congress/2019/04/30/new-measure-would-allow-troops-to-sue-for-military-malpractice-mistakes/

3. https://www.militarytimes.com/news/pentagon-congress/2019/04/30/new-measure-would-allow-troops-to-sue-for-military-malpractice-mistakes/

4. https://www.nytimes.com/2019/12/11/us/military-lawsuit-malpractice-feres.html

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