Soldier’s Family Awarded 'Multimillion Dollar' Medical Malpractice Claim From DoD

The family of an Army soldier who was a victim of military medical malpractice has been awarded one of the largest settlements to date under a 2019 law that allowed service members to file claims against the government.

Kait Brazel, the widow of Army Staff Sgt. Alfred “Fred” Brazel, will receive a “multimillion dollar” settlement, her attorney, Natalie Khawam, said in a press conference in Washington, D.C. Thursday. Khawam declined to disclose the exact amount at the request of Brazel, but said it was the first settlement in 165 claims she has filed on behalf of clients.

“This legislation is a game changer … It’s probably not moving as fast as we like it to move but it’s moving and Kait Brazel is an example of it moving and it working,” Khawam said, referring to a provision passed in 2019 by Congress that allowed service members to file malpractice claims against military treatment facilities.

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When Brazel returned from his second deployment to Iraq feeling less than 100%, he made an appointment at a military treatment facility -- his only option, barring some circumstances, as a member of the armed forces. While the doctor didn’t see anything immediately wrong, it was noted in Brazel’s medical record that he should have “eyes inside his body”-- a colonoscopy and endoscopy -- every five to 10 years, according to wife Kait.

Each time he requested the exams, however, he was denied, despite blood test results that should have raised concerns. When his health deteriorated to the point that he clearly needed care, the 37-year-old was diagnosed with stage 4 rectal cancer that had metastasized.

He died two months later.

“You kind of feel like you’ve been wronged by the people you grew up … looking up to,” Brazel said during the press conference. “It was very much a tug-of-war situation, how you continue to raise your children to be those proud Americans when you didn’t feel like you got that support when your husband died at the hands of his own doctors.”

At least 448 medical malpractice claims have been filed with DoD since Congress passed the 2019 law.

Prior to enactment, service members were barred from filing claims under a 1950 Supreme Court decision, Feres v. United States, that prohibits troops from suing the Defense Department or federal government over injuries or deaths that occurred as a result of military service.

The ruling, known as the Feres Doctrine, still prevents service members from filing civil suits for training accidents, sexual assault and medical malpractice. But the 2019 provision, named for Army Master Sgt. Richard Stayskal, permitted service members to file claims for damages arising out of negligence, wrongful acts or omission of care in military treatment facilities, including those harmed within the previous two years of signing and malpractice incidents moving forward.

The 448 medical malpractice claims filed with the departments of the Army, Navy, and Air Force as of late October seek more than $4 billion in damages. Of those, 11 had been settled — an approval rate of 2%. More than a quarter have been denied.

According to data provided by services:

• The Army had received 184 claims, of which six were approved, 36 denied, 73 were in appeal following an initial denial and 69 were still under investigation.
• The Department of the Air Force had received a total of 118 claims, of which four were settled, 23 denied without the chance of appeal, and six were appealed to the Defense Health Agency — five of which were denied. The remaining case was still under consideration.
• The Navy received a total of 146 claims, of which 58 have been denied and one settled.

Regarding the total amount paid out to date, only the Navy has provided the amount of its one settlement: $250,000.

Stayskal, whose doctors missed a spot on his lung that later was determined to be lung cancer, still has not yet received a settlement, but Khawam, who also represents Stayskal, said she is hopeful it will happen soon.

On one of her last days as a member of the House, Rep. Jackie Speier, D-Calif., who carried the Stayskal provision through the legislative process and is retiring from Congress, said she senses that the services want to “do right” by service members who are victims of medical malpractice.

“It should not happen, but when it does happen, [doctors] need to be held accountable,” Speier said.

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

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