In January 2017, Sgt. 1st Class Richard Stayskal had a routine CT scan done at Fort Bragg’s Womack Army Medical Center in North Carolina. He was diagnosed with walking pneumonia, but his health began to drastically decline over the next few months. This Purple Heart recipient who went on to become a Green Beret in the Army now had less than a 10% chance to live after U.S. military doctors misdiagnosed his condition.
It wasn’t until June of that year that Stayskal’s command granted him leave to see a civilian specialist off-base. Following a biopsy by the specialist, it was discovered that Stayskal had lung cancer. Due to the misdiagnosis, the cancer had spread over those months from Stayskal’s lungs to his spleen, liver, spine, hip joints and lymph nodes. As of January 2018 – one year after the misdiagnosis – Stayskal’s condition has progressed into stage IV lung cancer.
Stayskal’s story is just one of the thousands of service members who are victims of medical malpractice. However, a law passed back in 1950, called the Feres Doctrine, prohibits service members or their families from suing the government “for injuries to members of the armed forces arising from activities from military service.” If a service member saw the same doctor on a military base as a civilian patient, and the same mistakes were made, the civilian would be able to sue for medical malpractice, but the service member or their family would not.
of the Feres Doctrine was to eliminate Congress’ burden of private bills on behalf of military personnel. The Feres Doctrine states that U.S. service members and their families already have an established system in place for them to receive compensation, which is why they are not allowed to sue the government for medical malpractice. The compensation for injury or death from service comes in the form of life insurance payments and disability compensation for the service member and their family. Supporters of the Feres Doctrine also believe that if service members are allowed to sue the government for medical malpractice, it would “adversely affect military order, discipline and effectiveness.”
Congress does possess the ability to override the Feres Doctrine for certain cases of military medical malpractice by creating an amendment. Over the past 69 years, all of the requests to create an amendment to Feres Doctrine have been denied. “The Feres Doctrine is a travesty on our justice system,” said Lindsay Tygart, Coker Law medical malpractice attorney. “These service men and women put their lives on the line every day to protect the freedoms that we enjoy, yet we deny them the ability to seek justice for injuries or death caused by negligence at military medical facilities. Making the brave and courageous choice to serve our country should not mean you have to give up the very rights you are fighting to protect. It is unfathomable that this is the state of our law.”
After years of trying to change the Feres Doctrine, legislation is now closer than ever. During the 2019 legislative session, U.S. Representative Jackie Speier introduced H.R. 2422, a bill titled Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019. This bill would create a legislative fix to the Federal Tort Claims Act (FTCA), which allows civilians, but not service members, to sue the government for damaging acts of negligence. If the bill is passed, the fix to the FTCA would allow service members and their families to sue the government in cases where they are a victim of medical malpractice. Both Democrats and Republicans are backing the bill, sending it to the House Judicial Committee for review.
Another attempt to change the laws regarding military medical malpractice is on the forefront in the form of a Supreme Court Case. Daniel v United States is not trying to simply fix the FTCA, but instead overrule the Feres Doctrine completely. In 2014, U.S. Navy Lt. Rebekah Daniel gave birth to her first child at Naval Hospital Bremerton in Washington. Within 30 seconds of holding her newborn, Daniel went into postpartum hemorrhaging, and four hours later was pronounced dead. “There was no timeline, no records of what steps were taken,” Daniel’s husband explained as to why he filed the lawsuit. “I’ve had no answers.” After Daniel’s lawsuit and subsequent appeals were dismissed, Daniel and his lawyer petitioned the Supreme Court to amend the Feres Doctrine in October 2018. As of May 2019, Rebekah’s husband, family and lawyers are still fighting to get the petition granted by the Supreme Court to receive justice for her and all other military medical malpractice victims.
The military health system serves around 9.4 million beneficiaries, with 1.37 million of them being active duty service members. The Feres Doctrine prevents all of them from suing the military under the Federal Tort Claims Act for any injuries or death due to their service. This 69-year-old policy is now closer than ever to being overturned, thanks to all of the service members, their families and the politicians that have been courageous enough to fight for this justice.
Chair of the House Armed Services Military Personnel Subcommittee, feels the Feres Doctrine denies service members who put their lives on the line for this country the same access to the justice system enjoyed by service members’ spouses, other federal employees, and even prisoners. Creating an exemption for medical malpractice is long overdue. “For far too long, service men and women have not been able to sue military medical providers after being misdiagnosed, mistreated or subjected to negligent medical care, even though this negligence occurred in health care settings in which all other Americans have the right to bring a claim,” argues Tygart. “There is no question that service men and women should have the same rights as their fellow citizens they serve to protect.”