Service Members May Now Seek Compensation For Medical Malpractice In Military Hospitals

Feb 11, 2020

A new federal law chips away at a 70-year old judicial ruling that prevents members of the U.S. military from seeking financial compensation for injuries received on the job.

The ruling is called the Feres Doctrine. In 1950, the U.S. Supreme Court decided that the federal government could not be held liable for the death of Robert Feres, a World War II veteran and active duty Army officer, who died when his barracks caught fire.

The ruling extended an existing law that already protected the military from lawsuits over decisions made in wartime.

Since 1950, several rulings have interpreted the Feres v. United States case as protecting the government against liability in other non-combat situations, including medical malpractice.

For seven decades, service members who fell victim to malpractice in the military healthcare system have had no recourse for seeking compensation.

That changed on Jan. 1 when the Richard Stayskal Military Medical Accountability Act became law.

Sgt. 1st Class Richard Stayskal is a U.S. Army Special Forces soldier stationed at Fort Bragg, N.C. In 2017, the Green Beret began experiencing shortness of breath, chest pains, and even coughing up blood.

At a congressional hearing, Stayskal told members of the House Armed Services Committee that for months, he repeatedly sought treatment for his symptoms but to no avail.

Later that year, after consulting a civilian provider, Stayskal was diagnosed with Stage 3 lung cancer. By 2018, his cancer had reached Stage 4 and metastasized.

Addressing members of Congress, Stayskal said that the repeated failure of staff at Fort Bragg’s Womack Army Medical Center to identify and communicate his diagnosis had contributed to his terminal condition.

“The failures of military’s doctors to detect my cancer is a mistake that allowed an aggressive tumor to double in size, without any recourse, due to a 1950 Supreme Court case -- the Feres Doctrine.”

The Feres Doctrine has been widely criticized. Jurists with views as different as Antonin Scalia and Ruth Bader Ginsburg have called for it to be re-evaluated.  

Womack Army Medical Center at Fort Bragg. Sgt. 1st Class Richard Stayskal alleges medical staff at the North Carolina facility repeatedly failed to diagnose his cancer, which is now terminal.
Credit United States Army

Loretta Sheehan, a personal injury lawyer in Honolulu whose firm has won several medical malpractice cases against Tripler Army Medical Center on Oahu, says that the judicial precedent does allow dependents of service members to sue the federal government, if they have standing in a particular case.

She is currently working on a case in which the newborn child of a pregnant service member died soon after birth, which she says highlights the ethical and legal issues with the Feres Doctrine.

“The dad can sue. In the State of Hawaii, a dead person, their estate can sue. So the dad has a claim, the baby has a claim, but mom doesn’t. That doesn't make any sense at all.”

Bipartisan concern over that inconsistency is what brought Richard Stayskal before members of Congress.

They passed the Stayskal Act, which President Donald Trump signed as part of the 2020 National Defense Authorization Act. It allows service members to file claims against the military specifically in cases of medical malpractice.

The new law does not allow military members to take the Defense Department to court. What it does allow, according to Dwight Stirling who runs the Center for Law and Military Policy, is allow them to file a claim with their employer.

“What they can do now is file a claim within the DOD, and ask one of the top officials to review whether there was a mistake made and, if so, to set the amount of the compensation,” Stirling, a former judge advocate general officer, said in an interview.

This concerns Stirling, who says having the entire process handled within the Department of Defense is a little a fox guarding the hen house.

“It would be like if you were hurt, due to the negligence of a doctor, and you only have the option of going to the manager of that hospital and asking him or her how much you as the victim should be compensated,” he said.

Stirling estimated that, based on an initial $20 million appropriation, compensation will be about 10 cents on the dollar of what would be awarded by a civil court in an equivalent case.

Still, he says this is a step in the right direction in correcting what many have described as an injustice.

The first person to file a malpractice claim under the new system was Sgt Richard Stayskal.