I’m A Service Member: Can I Sue For Medical Malpractice?

That’s the question Special Forces Sergeant First Class Richard Stayskal asked himself after being routinely misdiagnosed with “pneumonia” while he was on duty near Fort Bragg. When he checked himself into the hospital, they sent him back home for bedrest. Only months later he was hospitalized because he couldn’t breathe, and once again sent home with a pneumonia diagnosis — even though the tests that were done showed signs of an aberration in his chest that anyone would have recognized as having needed a biopsy for further evaluation.

He was sent home instead.

But Stayskal followed his gut, knowing in his heart that something was wrong. He approached a pulmonologist who worked outside of the military, but there was a waiting list for new patients. When he finally found someone who would look at him, he was quickly diagnosed with Stage 4 lung cancer. It had spread to other parts of his body and put his life in danger.

Obviously angry, he discovered that it was unlawful to sue the military for medical malpractice — even though the gross negligence of his doctors could potentially result in his death. Representative Jackie Speier (D-CA) decided to look into his case. She chairs the House Armed Services subcommittee on personnel.

Because of the efforts of Speier and Stayskal, a new amendment has been added to the National Defense Authorization Act of 2020, a bill which already approved $738 billion in new military spending for the year while also increasing military pay for service members. Now, the bill will also allow the Secretary of Defense to approve redress for service members who were injured due to the negligence of military doctors. The Pentagon will pay the claims.

Speier isn’t entirely happy with all aspects of the bill — the SecDef has sole discretion over whether claims will or not be heard, and no redress monies will be allotted to pay attorney’s fees, which are capped at 20 percent — but she thinks it’s a good place to start.

Speier said, “It was important that we seize this unique political moment.” Stayskal “forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to [Congress] and heroic advocacy.”

The new bill will upend decades of challenges to the Feres Doctrine, which resulted from Supreme Court case Feres v. United States (1950). The ruling said that the U.S. government was not liable for injuries sustained during active duty — even when the result of the negligence of physicians. Perhaps they believed that a different ruling may have allowed service members to sue after being injured due to friendly fire on the battlefield.