Bill Would Let Troops Sue for Military Medical Malpractice

Military dog tags and a stethoscope rest on an American flag. (Getty Images/mstahlphoto)
Military dog tags and a stethoscope rest on an American flag. (Getty Images/mstahlphoto)

Army Sgt. First Class Richard Stayskal isn't working to change an obscure court ruling that prohibits him from suing the military health system -- the one that missed his terminal lung cancer -- just for himself.

He is doing it for his wife, children and the service members who could become victims of military medical malpractice, he told members of the House Armed Services personnel subcommittee on Tuesday.

"My children are definitely the true victims of along with my wife. The hardest thing I have to do is to explain to my children ... is that I have no good answers," regarding their future, said the Green Beret, who is dying from metastatic lung cancer.

Stayskal's name appears on a new bill introduced Tuesday by subcommittee Chairwoman Rep. Jackie Speier, D-California, honoring the soldier's fight against a policy that bars U.S. troops from suing the federal government for medical malpractice.

The SFC Richard Stayskal Military Medical Accountability bill would amend the Federal Tort Claims Act to allow military personnel to sue the federal government for damages relating to injury or death in cases of medical malpractice by military doctors.

The bill would pave the way for those with pending claims against military providers at the time of passage. It would also allow service members with future claims to sue. It would not apply to past cases, nor would it apply to mistakes made outside military medical facilities or clinics, whether in combat, at battalion aid stations or on ships.

Speier said the legislation is needed because the federal government has "let service members down" in depriving them of legal rights.

"A [prisoner] can sue under the FTCA for malpractice but a service member cannot who is not in a combat setting? This is a gross example of judicial activism of the worse kind," Speier said.

Stayskal testified Tuesday alongside Alexis Witt, the widow of an airman who suffered brain damage in 2003 following an appendectomy, and Rebecca Lipe, a former Air Force judge advocate and attorney who was injured by ill-fitting body armor that prompted a series of unnecessary surgeries and eventually led to infertility.

Witt said the nurse who gave her husband, Air Force Staff Sgt. Dean Patrick Witt, an overdose of fentanyl that caused cardiac arrest and irreversible brain damage, had been involved in the death of another patient a year before her husband's surgery, and she "went on to kill two more patients" afterward.

"If the appropriate action had been taken on this nurse during her first legal negligent episode, Dean would still be alive today," Witt told subcommittee members.

The Feres doctrine is a 69-year-old legal ruling that precludes troops from suing the federal government for injuries deemed incidental to military service.

The U.S. Supreme Court ruled in three separate cases in 1950 that the Federal Tort Claims Act, the law that permits citizens sue the government for wrongdoings by federal employees or agencies, does not apply to most service members for injuries resulting from the negligence of other military personnel.

The justices added that the ruling was needed to ensure that Congress was not "burdened with private bills on behalf of military and naval personnel."

During the hearing, Dwight Stirling, a former military attorney and CEO of the Center for Law and Military Policy, called the Feres doctrine “the most spurious, discredited legal doctrine in our history."

"To [Justice Antonin Scalia], the ruling was activism at its worst. He also condemned there was a double standard at the heart of the doctrine, that it only applies to military personnel, not to their family members or retirees," Stirling said.

Supporters of Feres, however, argue that negating the policy would upset order and discipline within the ranks. They say military personnel already have a robust compensation package that is provided to them or their surviving family members in cases of malpractice.

In a recent court filing, the Solicitor General of the United States said the military has an established systems and limits on malpractice help the military pay for health care for military dependents and retirees.

"Service members are entitled to generous, no-fault statutory benefits for injuries sustained as a result of medical services provided by the military," Solicitor General Noel Francisco wrote.

During testimony on Tuesday, Paul Figley, professor of legal rhetoric at American University's Washington College of Law, agreed with that argument, made earlier this year as part of a Feres case currently before the U.S. Supreme Court.

"It is understandable that such people are frustrated and they perceive that they or their loved ones are being treated unfairly ... from the perspective of fostering the long-term success of the critically important institution, the U.S. military, however, that remedy is a mistake. Simply put, Congress should not alter the Feres doctrine. Doing so would disrupt the vital and special relationships between the government and its service members," Figley said.

Speier has built a bipartisan coalition of support for her bill. Cosponsors include Rep. Richard Hudson, R-North Carolina, Rep. Jamie Raskin, D-Maryland, Rep. Guy Reschenthaler, R-Pennsylvania, Rep. Ted Lieu, D-California, Rep. Markwayne Mullin, R-Oklahoma, Rep. Charlie Crist, D-Florida, and Rep. Greg Steube, R-Florida.

Lawmakers, including Hudson, whose district includes Fort Bragg where the Stayskal family lives, said the legislation is needed to ensure that military personnel and families receive quality health care, because it would hold military doctors responsible and accountable for their actions.

"My priority is doing right by my constituent Rich ... I admire him and the Stayskal family's courage to advocate for these changes," Hudson said.

Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter at @patriciakime.

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