Senators introduce bill that would allow service members to sue for medical malpractice

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A Green Beret describes how the military botched his cancer diagnosis

A Green Beret describes how the military botched his cancer diagnosis

On Tuesday Sens. John Kennedy (R-La.) and Mazie Hirono (D-Hawaii) introduced bipartisan legislation that would allow service members to sue the government for military medical malpractice.

The SFC Richard Stayskal Military Medical Accountability Act of 2019, a companion bill to the House version introduced earlier this year by Reps. Jackie Speier (D-Calif.) and Richard Hudson (R-N.C.), would allow military personnel to sue the government for negligence or wrongdoing that occurred during medical care at a military hospital outside of a combat zone.

Currently, service members are barred from bringing lawsuits against the government for negligence or wrongdoing due to a 1950 Supreme Court ruling known as the Feres Doctrine. Since its establishment in Feres vs. United States, the legal rule has been broadly applied to everything from training incidents, to workplace violence, sexual assault, and military medical malpractice.

The proposed Senate bill (along with the House version, which is currently being reviewed by the Senate as an amendment to the 2020 defense budget bill) would not allow service members to sue the government for medical mistakes that occurred in a combat zone.

However, it would open the door for those who were injured — or for the families of those killed — due to botched operations at home.

"A claim may be brought against the United States under this chapter for damages for personal injury or death of a member of the Armed Forces arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) that is provided at a covered military medical treatment facility by a person acting within the scope of the office or employment of that person by or at the direction of the Government of the United States," reads the bill, which was provided to Task & Purpose by Natalie Khawam, the attorney for Richard Stayskal, the Army Green Beret for whom the bill is named.

A Special Forces soldier and former Marine infantryman, Stayskal's lung cancer was missed during a routine health screening at Womack Army Medical Center on Fort Bragg, North Carolina. By the time the cancer was caught, it was too late: The disease had metastasized, and is now terminal.

Stayskal was on Capitol Hill Tuesday to try to drum up support among member of the Senate to keep the Feres Doctrine legislation in the 2020 National Defense Authorization Act.

Rep Speier Honors SFC Richard Stayskal

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"We are so grateful to Senators Kennedy and Hirono for introducing this important bipartisan bill that will protect our troops," Khawam told Task & Purpose.

In recent months Stayskal has become a public figure in the fight for military medical malpractice reform, as Task & Purpose reported in May, when he spoke before Congress on the Feres Doctrine and military medical malpractice.

"The hardest thing I have to do is explain to my children when they ask me 'this doesn't make sense, how is this happening?' and I have no good answer to give them and that's why I'm coming up here to help convince these folks in Congress to change this," Stayskal said during his May testimony before Congress.

"We owe service men and women our utmost respect and the best care when they come home," Kennedy said in a statement provided to Task & Purpose. "When medical malpractice or negligence occurs, patients have the right to sue their doctor, but the Feres Doctrine has stripped that right from members of the military. This is an awful precedent, and I'm very grateful to Sgt. Richard Stayskal for bringing this issue to light. This legislation will help to overturn this backwards precedent that hurts service members and their families."

"For decades, the so-called Feres doctrine has denied our servicemembers their day in court when they are the victims of medical malpractice. It is slap in the face to the men and women who serve our country," Hirono said in a statement. "The SFC Richard Stayskal Military Medical Accountability Act of 2019 will finally remove this stain on our country's treatment of those in uniform. I am proud to introduce this important legislation with Senator Kennedy, and I call on my colleagues on both sides of the aisle to support this long-overdue bill."

The Senate version of the SFC Richard Stayskal Military Medical Accountability Act of 2019 can be read below:

SIL19956 (Feres Bill) by Jared Keller on Scribd