‘It’s A Scandal’ — Inside The Fight To Hold The Military Accountable For Medical Malpractice

Army Sgt. 1st Class Richard Stayskal felt like he was falling apart.

A physically fit Green Beret, Stayskal first noticed something wrong with his body in March 2017 while training at the Army’s Special Forces Dive School in Key West, Florida. Unable to keep up with his elite training — a red flag for the athletic 37-year-old combat veteran — he was sent home to Fort Bragg, North Carolina.

By April, Stayskal began to wheeze and had difficulty breathing when lying on his back; other times, his body would go numb, and his vision blurry. In May, he visited the emergency room twice, once on base at Womack Army Medical Center and a week later out in town. Then, in early June, he began coughing up blood — a teaspoon at first, but it was more by the day.

Answers as to why his health was on the decline proved elusive. The best guess from base doctors was walking pneumonia and allergies. Repeated calls to insurance providers at TriCare and doctors at Womack to have his appointment with a specialist moved up — to find out why breathing would make him wheeze and cough, then bleed — yielded no results.

Fed up, he turned to his unit for help and his commander intervened, landing him a consultation with a civilian pulmonologist by the end of June. Days later, he went in for a biopsy which uncovered a non-small cell adenocarcinoma. As he awoke from the surgery, Stayskal overheard the doctor telling his wife he had lung cancer.

It could have been caught five months earlier.

Before Stayskal headed to dive school in Florida, a CT scan during a routine health screening at Womack Army Medical Center on Jan. 27, 2017, showed a mass on his right lung. It’s unclear why, but the tumor wasn’t spotted. Then, when Stayskal was rushed to the base hospital emergency room on May 15, 2017 the attending doctors did a “retrospective reread” of that January scan, and suspecting something was amiss, recommended he meet with a pulmonologist. Stayskal was not made aware of their concerns, or that the mass appeared on the January CT scan.

A spokesperson for Womack Army Medical Center declined to comment to Task & Purpose.

Doctors’ notes from Stayaskal’s January physical, and mid-May emergency room visit, along with a timeline of events, were provided to Task & Purpose by attorneys from Whistleblower Law Firm, who are representing the soldier in an upcoming malpractice case. Additionally, a radiologist consulted by the law firm claimed that the alleged misdiagnosis occurred at a critical time, and that had the cancer been caught in January, it could have been treated more easily.

The cancer is now stage IV and has metastasized to Stayskal’s pelvis, spinal bones, lymph nodes, liver, and spleen. Doctors estimate he may only have a year to live.

“I feel like my life has been stolen from me because people failed to do their job,” Stayskal told Task & Purpose.

“Somebody sentenced me to an early death, and they could have prolonged it a lot longer. I’m being taken from my children, my two daughters, and my wife. I’m being taken from the plans I had for the next 15 years in the military, everything.”

Stayskal and his attorneys intend to file a federal civil lawsuit in the coming months with the U.S District Court in the Eastern District of North Carolina, where they’ll have a chance to submit evidence to support their claim that the cancer diagnosis was missed, and raise their allegations of medical malpractice.

But that may be as far as it goes.

It’s a near-certainty that the case will be dismissed before it ever gets to trial, for one reason: Because the alleged misdiagnosis occurred while Stayskal was in the military, he and his family are barred from suing the Department of Defense for medical malpractice due to an obscure 68-year-old legal rule known as the Feres Doctrine.

But lawsuits like Stayskal’s — including a recent petition submitted to the Supreme Court in another case — raise significant questions about what are acceptable risks of military service that go well-beyond injury and death on the battlefield.

The Feres Doctrine was established in 1950 by the Supreme Court in Feres vs. United States, a case involving the Federal Tort Claims Act that allows citizens to sue the government for negligence or wrongdoing. In Feres, the Court dismissed a lawsuit brought by the widow of Army Lt. Rudolph Feres, who died in 1947 when his barracks caught fire due to a defective heating system, ruling that the federal government could not be held liable “for injuries to members of the armed forces arising from activities incident to military service.”

In layman’s terms, the Feres Doctrine prohibits troops and their families from suing the military for injury or death brought on by their service.

The reasoning behind Feres is two-fold: A system for compensating military personnel and their families for injury or death already exists in the form of disability compensation and life insurance payments; and opening the military to lawsuits might invite second-guessing of command decisions in civilian courts.

In the decades since the rule was established, it has been applied to a wide range of instances — from training mishaps, to sexual assault, and medical malpractice.

“What it has boiled down to over the years is where the care provided was, to use the term, ‘incident to military service,’ you’re not covered under Feres,” Brewster Rawls, a malpractice attorney and president of Rawls Law Group, told Task & Purpose. “That has been consistently applied in malpractice cases as being basically, if you’re on active duty and you’re treated in a military hospital, through a military healthcare provider, tough luck.”

The Feres Doctrine is an interpretation of the Federal Tort Claims Act, and as a Supreme Court precedent “has the force of law, but it is how the law has been interpreted, not how Congress wrote the law,” Rawls said.

Ultimately, that means Feres can only be changed in two ways: Through Congress, in the form of an amendment to the Federal Tort Claims Act; or through a Supreme Court decision to overturn the 1950 ruling.

It’s difficult to say for sure exactly how many service members or military families have claims that run afoul of the Feres Doctrine, since the suits aren’t always taken up by attorneys.

That’s because Feres cases are near-impossible to win.

“The vast majority of the cases never even go to the first level of the system because most lawyers, you’re gonna look at it and say ‘I’m really sorry, this is unfair, but I can’t take it,” Rawls told Task & Purpose.

Which is what Natalie Khawam, one of the attorneys representing Stayskal, said she heard from other lawyers when they began looking into his case, adding that “the cases that are known as impossible and un-winnable are the most important cases to fight for.”

After Stayskal found out he had lung cancer, he said he was in “disbelief.” But when he learned that it could have been caught during his Jan. 27, 2017 health screening, he became “angry, devastated, upset, heartbroken,” Stayskal said. “Lots of emotions.”

“I just don’t believe that this should be left alone, and allowed to continue to happen to soldiers, sailors, airmen, whatever — it shouldn’t happen to anyone, in the civilian world or the military,” Stayskal, who deployed overseas multiple times between his years in the Corps and the Army, told Task & Purpose.

A career soldier, he left the Marines in 2005 after a four-year enlistment as an infantryman and joined the Army a year later to pursue a career in special operations — inspired by the life-saving medical care of a Special Forces medic after he was shot in Iraq.

“I went to everybody on post, people I’ve respected and known for years, and the general answer was there’s nothing you can do,” Stayskal said, adding that he filed a complaint with the director of Womack Army Medical Center in July 2017. When asked about the July complaint, a spokesman for the medical center referred Task & Purpose to the Army Claims Service at Fort Meade, Maryland, which did not respond to repeated requests for comment.

Desperate, Stayskal sought legal representation from Whistleblower Law Firm in October 2017.

“The more I learned about the Feres Doctrine — that it bars me from justice — it just didn’t make sense to me,” Stayskal, who is still on active duty in Army, told Task & Purpose. “Why am I not allowed to have this one right?”

Stayskal isn’t the only one searching for an answer to that question.

In October 2003, after Air Force Staff Sgt. Dean Patrick Witt underwent a routine surgery for acute appendicitis, a series of errors — from moving Witt to the pediatric area, where undersized devices couldn’t fit a grown adult, to nursing staff arguing and mistakenly administering a double dose of a “powerful stimulant,” to improperly inserting a breathing tube — the airman was left with severe brain damage, The Los Angeles Times reported in 2008.

Three months later he was taken off life support, leaving behind a wife and two children. Despite the alleged mistakes, his family was barred from suing due to Feres. By 2011, Witt’s case was submitted to the Supreme Court, but the court refused to hear it, declining without comment, Stars and Stripes reported in 2011.

When Carmelo Rodriguez went to his initial physical prior to joining the Marines in 1997, his doctor noted a melanoma on his back, but allegedly never informed him. Ten years later Rodriguez died of skin cancer, shortly after speaking with a CBS News crew who came to interview him for a story on medical malpractice, the organization reported in January 2008 — two months after his death.

By 2010, bills to overhaul the Feres Doctrine named for Rodriguez were introduced by both the House and Senate. The Senate measure died in the Judiciary Committee; the House measure was placed on the Union Calendar, and there it stayed. Neither were ever put to a vote.

And in March 2014, Lt. Rebekah Daniel, a Navy nurse stationed at Naval Hospital Bremerton in Washington, gave birth to a healthy baby girl at the facility where she worked. Four hours after the low-risk childbirth, she died. Her husband, Walter Daniel, filed a wrongful death suit in 2015, which was barred like the others.

Still, Daniel brought the case before the 9th Circuit Court of Appeals, and though it upheld the lower court’s ruling, Judge Michael Daly Hawkins wrote in his opinion: “If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.”

On Oct. 11 of this year, Daniel and his attorneys filed a suit with the Supreme Court to attempt to do just that, as Task & Purpose previously reported.

Walter and Rebekah Daniel.Courtesy of Walter Daniel

“Look, we understand the risks of serving in the military,” Daniel, who spent 18 years in the Coast Guard, said of he and his wife, both of whom came from multigenerational military families.

“I understand that it’s inherent in military service to accept some level of risk,” Daniel told Task & Purpose. “However, the simple fact of giving birth to a child, in my opinion, that is not incident to service.”

“It’s unacceptable, and it’s worth the fight for justice.”

Even so, a Supreme Court hearing is a long shot: Only about 80 of the 7,000 to 8,000 cases submitted each term are heard.

For decades, the Feres Doctrine has been roundly criticized by veterans advocates, lawmakers, and even judges — including the late Supreme Court Justice Antonin Scalia, who voiced his dissent in 1987:

“Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received,” Scalia wrote of Feres. The opinion stemmed from United States vs. Johnson, in which the Supreme Court barred the widow of a Coast Guard helicopter pilot from suing the government after her husband died in a crash during a rescue mission due to alleged negligence by federal air traffic controllers.

Among critics of Feres, the outrage over the doctrine stems from a double standard that allows one set of rules for civilians, and one for service members in cases where victims seek monetary damages.

For example, if a service member and a military dependent go to the same on-base hospital, receive the same treatment from a military doctor, and the same mistakes are made in each case, the law treats them very differently.

“The one who was on active duty cannot bring a claim under the Federal Tort Claims Act; the one who is a dependent, can,” Eugene R. Fidell, who teaches military law at Yale Law School, told Task & Purpose.

“And so you have tremendously disparate outcomes based on the same professional shortcomings simply as a function of whether the victim of the malpractice is on active duty or not,” said Fidell, who testified before Congress on the Feres Doctrine in 2009.

“That’s the heart of the matter.”

Critics of the Feres Doctrine have been willing to give ground when it pertains to combat operations or training, but there’s a sense that the rule has been applied too broadly.

“We accept certain risks downrange, under undesirable circumstances,” Stayskal told Task & Purpose. “But I wasn’t in those circumstances.”

“I was afforded TriCare and these other health benefits, well, they failed to take care of me when they said they would,” he added. “I just don’t think that should continue.”

The legal rule isn’t without its defenders. Though it’s not a Department of Defense policy, the military has a vested interest in seeing the Feres Doctrine remain unchanged. The main argument: Changing Feres would cause more problems than it solves.

The Pentagon claims that reversing Feres would erode the military’s current system of no-fault compensation, which provides disability payments to troops should they be injured in the course of their duties, Jessica Maxwell, a Pentagon spokesperson, told Task & Purpose in an email statement.

Though the government already offers compensation through the DoD’s Disability Evaluation System, and the Veterans Benefits Administration, as well as a $400,000 Servicemembers’ Group Life Insurance policy, those payments are rarely on par with what a plaintiff could receive through a successful lawsuit.

Additionally, the Pentagon argues that opening military care providers to lawsuits would lead to “defensive medicine practices” which Maxwell said could “compromise everyday medical decision making essential to military readiness.”

Then there are the questions about who should have the right to sue.

If the Feres ruling were wholly reversed, then “an injured member or the family of a deceased member would be allowed to sue for certain injuries based on an allegation that some other military member or government employee was negligent,” Maxwell said. “In contrast, military members injured or the families of members killed in combat or other military operations would have only the no-fault compensation system, even if the injury or death were due to friendly fire or there were some other issue of negligence by another military member.”

“The combat injury or death would appear to be valued lower than an injury or death where a tort claim would be allowed,” such as in the case of malpractice, Maxwell said. “Such an inequity toward members injured or killed in military operations could not be sustained.”

But in the case of plaintiffs like Daniel and Stayskal, neither are seeking the wholesale reversal of the Feres Doctrine, just a change in the wording to allow suits in cases similar to theirs — where alleged malpractice occurred during routine operations at a stateside hospital, as opposed to mistakes made in a medical tent in a warzone.

As for the argument that these suits would create divisions between those who can sue and those who can’t, or that it would somehow undermine good order and discipline, Stayskal rejects that line of reasoning.

“How many people do you see trying to sue anybody over losing a limb, or over being shot downrange?” asked the Green Beret, who was shot during a 2004 firefight in Ramadi, Iraq when he was in the Marines. “We understand those risks and that in a time of war, those circumstances are going to happen.”

“When people ask me to do my job downrange on a combat deployment, they don’t care what the answer is if I don’t succeed,” he continued. “But you’re sitting here , asking to be checked over, making the appointments, and somebody just flat-out doesn’t do their job?”

Another consequence of changing the legal rule could be expense. If Feres were changed, the federal government would have to shoulder the retroactive costs of previous malpractice cases, not to mention future ones.

To get a sense of cost, consider the Carmelo Rodriguez Military Medical Accountability Act of 2009 — the bill named for the Marine veteran who died of skin cancer after his melanoma was overlooked. Had the bill become law it would have cost the federal government roughly $2.7 billion over the next 10 years, according to a Congressional Budget Office estimate.

“Obviously, the government has to make sure the treasury is not drained as a result of malpractice claims by military personnel,” Fidell said. “We’re all taxpayers, we’d all bear that. Are there ways the government could alleviate that problem? Yes. For example, if it had better systems in place to make sure malpractice doesn’t occur.”

And though it may be counterintuitive, an initial influx of lawsuits, while costly, could play a role in that, Fidell told Task & Purpose.

“One purpose of malpractice litigation is to light a fire under medical providers to do the best possible job, or to do a job that meets reasonable professional standards, and that’s a major incentive in American society,” Fidell continued. “But the military medical system is outside that where the patient is an active-duty member.”

Beyond balancing the competing pressures to amend a law many see as unfair, with the real-world costs of doing exactly that — there could be yet another reason efforts to change Feres have stalled: It’s simply easier to maintain the status quo.

“Though occasionally justices have wrung their hands and said this is terrible, and members of Congress have had constituents banging on their door with really heart wrenching stories that are infuriating, that’s not what gets the entire House or Senate leadership to spring into action,” Fidell told Task & Purpose.

“It hasn’t happened yet,” Fidell added. “This is a conversation I have every two or three years with journalists. It’s the same story. Somebody comes forward and gets the attention of someone in the blogosphere or the traditional media, and there’s a little blip of interest, and then it fades.”

“It’s really a scandal.”

As for Stayskal, the ordeal — from the alleged misdiagnosis, to his declining health and ongoing cancer treatment, and the upcoming legal battle against the Feres Doctrine — has taken a heavy toll.

“I don’t even have the words sometimes to describe what my family and I are going through,” Stayskal said.

Stayskal has undergone three rounds of radiation, as well as surgery. He has lost weight, has trouble keeping food down, and is currently focused on reducing the pain — and maintaining his quality of life — as best he can.

“I take four pills a day,” he said of medication he currently takes for chemotherapy. “Right now, the cancers are responding to the pills, so for all intents and purposes, I’m doing okay. There’s pains here and there, it’s hard to breathe, and I’m tired all of the time. I don’t have much of a life anymore.”

Stayskal’s lawyers plan to file their suit with U.S District Court in the Eastern District of North Carolina before the new year, though they have until April 12, 2019 to do so.

“I would honestly like to be compensated for the atrocious acts committed upon me,” Stayskal said. “We all know it’s a hard day and age for one-person income and families, and now my wife is going to be forced to take on that role for something that they could have caught and fixed.”

It’s highly likely his suit will be barred, given the history of past Feres cases. Next, he and his lawyers will have a chance to raise their allegations and submit evidence, with the ultimate goal of strengthening a case for an appeal.

It’s all part of the lengthy process necessary to get Stayskal his day in the nation’s highest court.

But given the track record of previous malpractice claims that have run up against the Feres Doctrine, and failed Congressional efforts to see the rule changed, the chances for a victory in Stayskal’s case are slim. More than that, it will take months, if not years.

And that is time he probably doesn’t have.