Department of Defense Could Soon Pay Medical Malpractice Claims For Service Members

When you have a medical concern while serving in the United States armed forces, you’re pretty much out of luck — regardless of whether or not your injuries were sustained on the operating table due to the negligent behavior of a mad scientist or bad doctor. That’s because those injuries are simply a part of volunteer military service. They’re a risk you opted to take when you signed up. At least that’s how the military has traditionally viewed such circumstances.

That might not be the case for much longer.

It’s because of the Feres Doctrine that members of the military cannot sue for medical malpractice. But the relevant clauses have begun to raise eyebrows. Special Forces Sergeant First Class Richard Stayskal began to experience problems breathing in early 2017 while he was serving near Fort Bragg. He checked himself into the hospital there, but was basically told to get some rest.

He continued to complain over the next few months. By May, he was rushed to the hospital when he stopped breathing. Doctors found evidence of cancer, but sent Stayskal home after diagnosing him with a case of pneumonia. It was at least another month before he was finally correctly diagnosed. Now, he has stage 4 lung cancer that has spread to other parts of his body.

Although technically not allowed, he opted to open a case against the U.S. government for the gross negligence of the doctors at Fort Bragg. It landed on the desk of Representative Jackie Speier (D-CA), who chairs the House Armed Services subcommittee on personnel. She quickly decided to sponsor a new medical malpractice bill for service members on behalf of Stayskal. 

And it looks like the pair succeeded. A new clause of the National Defense Authorization Act of 2020 will allow the Secretary of Defense to approve “redress” claims for victims of malpractice. Those claims would not be inflated to include attorney’s fees. Lawyers would also be limited to a maximum of 20 percent of the payout. The bill approves $738 billion in military spending during the 2020 fiscal year and provides increases for military pay.

Speier doesn’t believe the SecDef should have this authority — instead, she thinks it should belong to someone else’s purview — but she knows it’s a necessary first step. “It was important that we seize this unique political moment,” she said.

She says it was thanks to Stayskal that they were able to make progress at all. He “forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to [Congress] and heroic advocacy,” she said.