Green Beret Fights to Sue Military Doctors

Sgt. Richard Stayskal has been pushing Congress to make a change to the "Feres Doctrine"

  • by Director of Enterprise & Investigative Reporting, MedPage Today

Suffering from late-stage lung cancer, U.S. Army Sgt. First Class Richard Stayskal worried the military doctors, who he says misdiagnosed him, would never be held accountable.

The Green Beret didn't really want to sue, but top brass at Womack Army Medical Center shrugged off the alleged negligence when they met with him, Stayskal said.

"I started to talk to every JAG officer I could," Stayskal told MedPage Today, referring to the Army lawyers called the Judge Advocate General's Corps. "They basically told me I couldn't sue, but they didn't know why. It became an issue of someone is going to get away with this, and nobody cares."

At that point, Stayskal hadn't heard of the "Feres Doctrine," stemming from a 1950 U.S. Supreme Court case called Feres v. United States, that bars active-duty service members from suing the government for negligence, including medical malpractice. Dozens of cases have been tossed out because of Feres, and more have been deterred outright because of the known roadblock, military legal experts say.

It wasn't until Stayskal connected with attorney Natalie Khawam, of the Whistleblower Law Firm in Tampa, Florida, that he learned what he would be up against if he tried to sue.

Khawam told him it would take an act of Congress to change the rule -- so they went to work, setting up meetings with members of Congress to try to get one of them to introduce legislation to challenge Feres.

Their efforts are paying off: language that would allow active-duty military to sue for medical malpractice made it into the House version of this year's National Defense Authorization Act (NDAA).

"Men and women in the military have become victims of Feres," Khawam told MedPage Today. "We need this in place to establish safeguards for our military and hold people accountable for the wrongs they commit upon our service members."

It won't be an easy fight. Other efforts for a congressional fix to Feres have gone nowhere, and a petition for a hearing at the Supreme Court -- the only other approach to changing Feres -- was denied in May. Also, the Department of Defense (DoD) maintains that its current "no-fault" compensation system provides the most equitable approach to all types of negligence, including medical malpractice.

The NDAA is now in conference, and Stayskal and Khawam are hoping their provision makes it to the final bill that's expected to land on President Trump's desk in October.

Stayskal, who has stage 4 lung cancer and is receiving palliative care, is determined to see through what could be his final battle.

"I took a lot out of what I do for a living in special operations and applied it here [in the halls of Congress], adapting to the situation and learning my environment," he said. "It hasn't been easy, but we're figuring it out."

'Waterboarded with Blood'

Stayskal has been on active duty since before 9/11. A member of the Army Special Forces, he's completed three tours in Iraq and has been stationed in various locations in Europe and Africa.

In January 2017, he needed a routine physical ahead of a Special Forces dive training program in Key West, Florida. He'd sustained a gunshot wound to his left lung in 2004 while in Iraq, and officers needed to be sure he could handle the rigors of scuba diving.

Womack Army Medical Center in Fort Bragg, North Carolina, did the physical and the CT scan, and said they'd contact Stayskal if anything came up.

He was cleared to go to dive school, but heard nothing else about his CT, he told MedPage Today.

By March 2017, long since back from training, Stayskal started having trouble breathing. He developed a wheezing cough and shortness of breath.

He finally got checked out at Womack in the middle of May, where he was given breathing treatments and sent home with prednisone.

But Stayskal was back at the hospital a week later, after coughing up blood.

"When I was sleeping or lying down, it felt like I was being waterboarded with blood," he said.

Further testing -- an X-ray, EKG, and ECG -- didn't change his course of treatment, but he felt there was more to the story. He advocated for permission to see a civilian doctor but was denied until a commander went to Womack to press the issue.

Finally, at the end of June 2017, nearly six months after his initial CT scan, Stayskal was able to see a civilian pulmonologist in Pinehurst, North Carolina. That doctor ordered a CT, quickly followed by a biopsy.

The diagnosis: stage 3A non-small cell adenocarcinoma of the lung.

He started treatment, which included lumpectomy, radiation, and chemotherapy, but the disease was found to be metastatic in December 2017, with tumors in the lymph nodes, spleen, right hip, and spine.

Stayskal said he was told in May that the Womack record from January 2017 included a note saying some CT findings needed to be addressed, but that hadn't been conveyed to him at the time.

Feres Misapplied

The original Feres v. United States litigation wrapped three negligence cases into one. Injured soldiers or their families were suing under the Federal Tort Claims Act (FTCA), which when implemented in 1946 enabled people to bring suit against the federal government.

Two of the cases involved medical malpractice, both related to surgery. In one of them, a 30-by-18-inch towel that said "Medical Department U.S. Army" was left behind in a patient's stomach.

The third case was that of Army Lt. Rudolph Feres, who died in a barracks fire started by a defective heater; his widow sued for negligence, charging that the military should have known about the faulty equipment and didn't maintain an adequate fire watch.

The Supreme Court ruled that the U.S. isn't liable under the FTCA for injuries that military service members sustained while on active duty. The justices' intent was to block lawsuits over pressured judgment calls made by frontline medics and surgeons, but has since been expanded to cover all scenarios in the military medical system, Khawam said.

"If a soldier is shot in the leg during a war and a medic comes to help, accidentally amputating rather than taking out the bullet, the point is to protect that medic," she said. But in Stayskal's case, "This isn't war. It's not combat-related. It's a major deviation from the spirit of the law."

Feres effectively deters active duty service members from bringing a lawsuit; those that do get filed are tossed out, said Eugene Fidell, a former Coast Guard lawyer who is now partner in the law firm Feldesman Tucker Leifer Fidell and who teaches at Yale School of Law.

"I've watched this for decades, really heartbreaking cases happen every year with indefensible outcomes," Fidell told MedPage Today. Those cases include a bungled fallopian tube surgery that left a woman infertile, a botched gallbladder removal, and skin cancer that went untreated.

"The problem was created by the Supreme Court, and justice after justice has recognized it over the years, but they have not figured out a way out of the box canyon," he said. "Instead, they wait for Congress to fix the problem they generated."

"But whether this or any foreseeable Congress will do anything is unlikely," he said.

Unsuccessful Attempts at a Feres Fix

One recent attempt to fix Feres via an act of Congress was led by the family of Marine Sgt. Carmelo Rodriguez, who died from skin cancer in November 2007.

They claimed that his military doctors recorded numerous potentially cancerous tumors on his body over 8 years but never told him.

The Carmelo Rodriguez Military Medical Accountability Act of 2009 was introduced in both the House and the Senate, but it went nowhere -- following the same fate of several "nearly identical bills" over the decades, according to a Catholic University Law Review brief.

As for petitioning the Supreme Court, a case brought by the husband of an active duty service member who died in childbirth was just denied a hearing in May.

Walter Daniel tried to sue for malpractice in the death of his wife Rebekah "Moani" Daniel -- who was herself a labor and delivery nurse at Naval Hospital Bremerton -- but the case was dismissed by a district court because of Feres.

Daniel's attorney Andy Hoyal of the Luvera Law Firm petitioned the Supreme Court in October 2018, knowing "the odds were against us and that it would be an uphill battle," Hoyal told MedPage Today.

But he and his team "had some arguments that had not been made," including the fact that the basis for Feres had changed since it was decided in 1950 and that the Court never considered medical malpractice in light of those changes. Also, they argued that military healthcare has since evolved to look more like that of a large civilian healthcare system.

Their petition was denied in May, but Justice Ruth Bader Ginsburg said she would have granted a hearing, and Justice Clarence Thomas wrote a dissenting opinion.

"I have explained before that 'Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received,'" Thomas wrote, citing a recent case in which a private company was held liable for damages in asbestos cancer cases that were really the Navy's responsibility.

"Such unfortunate repercussions -- denial of relief to military personnel and distortions of other areas of law to compensate -- will continue to ripple through our jurisprudence as long as the court refuses to consider Feres," Thomas wrote.

DoD spokesperson Jessica Maxwell said in an email to MedPage Today that the department "continues to support the longstanding policy that all military members and their families should be under the same compensation system for personal injuries or death, whether caused by combat, training accident, household accident, natural cause, or other reason." Fidell noted that the military offers a death benefit, and injured service members can retire on disability.

Maxwell said if an exception were made for medical claims -- as legislation now in Congress would do -- it would be unfair to victims of other types of negligence. Deaths in such cases would "appear to be valued lower than an injury or death where a tort claim would be allowed," she argued. "Such an inequity toward members injured or killed in military operations or a wide range of other circumstances could not be sustained."

She added that the Military Health System has a "comprehensive program of quality assurance" for all malpractice cases, which includes external peer review and reporting to the National Practitioner Data Bank.

Additionally, "more malpractice suits would likely bring defensive medicine practices to military healthcare, compromising every-day medical decision making essential to military readiness," Maxwell said.

Stayskal Fights On

Rep. Jackie Speier (D-Calif.) introduced the SFC Richard Stayskal Military Medical Accountability Act of 2019 in the House in April.

The bill amends the Federal Tort Claims Act to allow active-duty military to sue for medical malpractice; it wouldn't have any impact on general negligence cases.

"Our service members deserve the right to sue the government when negligent medical care results in their injuries or deaths," Speier said in a statement.

The bill was incorporated into the final House version of the National Defense Authorization Act that is now in conference. The Senate version has no counterpart to Speier's language, so it's possible the compromise legislation, expected to pass by early October, won't include the House provision.

Khawam and Stayskal are hopeful it will. They've filed a lawsuit in Richard's case ahead of the expiration of the statute of limitations.

"Where Richard should be fighting ISIS, he's fighting cancer," Khawam said. "This is not about suing doctors, it's about changing the broken system at the DoD so that our soldiers are safe."

Stayskal said that while fighting the battle on Capitol Hill has been "stressful, and a lot of work, it would be great to see this come through."

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