Service Members Granted The Right To Sue For Medical Malpractice

For over a year, we have been following the case of Sgt. 1st Class Richard Stayskal, a Green Beret who was leading the fight to allow service men and women the right to bring a medical malpractice claim against the government. Active duty military members had been prohibited from doing so under a prior Supreme Court decision, which was known as the Feres doctrine. 

Sgt. Stayskal’s case is a perfect illustration of why revisiting the right to bring malpractice claims was quite overdue. Sgt. Stayskal completed several tours and was awarded a Purple Heart after he was shot in the chest in Iraq in 2004. Thirteen years later, he visited Womack Army Medical Center at Fort Bragg for chest issues. Doctors there misdiagnosed his lung cancer, twice. He was told he had pneumonia, despite the fact that medical staff made notes of a “possible mediastinal mass” and an “abnormality” that “needed” attention. Sgt. Stayskal later visited a civilian doctor, who accurately diagnosed his lung cancer. By the time he finally received the correct diagnosis, the cancer had metastasized. He was diagnosed with Stage IV terminal lung cancer. 

Since last year, Sgt. Stayskal, his family, and their supporters have lobbied lawmakers to revisit the doctrine. The group presented a petition with over 75,000 signatures, held a “March for America,” and met with various lawmakers to state their case. Legislation was introduced to allow active-duty soldiers to bring malpractice claims as part of the National Defense Authorization Act (NDAA). However, throughout the course of the year, the legislation saw some roadblocks. In early November, the bill stalled due to opposition from Senator Lindsey Graham, chair of the Judiciary Committee, who expressed concern that the bill would open the government up to lawsuits unrelated to malpractice.

Despite these obstacles, the final NDAA was released on Monday, which included an amendment that allows members of the country’s armed forces to file a claim against the U.S. and receive compensation if they were subjected to “negligent or wrongful” medical treatment at a military facility. There is no cap for how much a service member can be compensated and the government allotted $400 million over ten years. Family members can file a claim if their loved one has died as a result of medical malpractice. The next step is for the act to be passed by the Senate and signed by President Donald Trump, which is expected by the end of December.

Representative Jackie Speier, who introduced the legislation, called it a “breathtaking win” and “historic victory.” She told ABC News that “[The legislation] is going to be able to provide some level of appropriate compensation” for service members who have been the victim of medical malpractice.