Dying of cancer, this Green Beret has one last mission: Getting Congress to fight for military medical malpractice reform

"You think you're limited on time? You ought to talk to me about limited time."

Analysis

VIDEO: Green Beret Sgt. 1st Class Richard Stayskal describes how the U.S. military botched his cancer diagnosis

Sgt. 1st Class Richard Stayskal is dying.

The 38-year-old Green Beret's cancer was missed by Army care providers in 2017, and is now terminal. For the last year he's been fighting to change a decades-old legal rule known as the Feres Doctrine, which bars Stayskal and his family from suing the government for the alleged medical malpractice.

That's why, on Sept. 9 and 10, instead of being home in Pinehurst, North Carolina, with his wife and two daughters, Stayskal was in Washington, D.C. trying to drum up support for his namesake legislation, the SFC Richard Stayskal Military Medical Accountability Act, which would allow service members to sue the government for certain medical malpractice incidents.

Over two days, Stayskal and his attorney, Natalie Khawam, visited the offices of eight senators — Jack Reed (D-R.I.), Chuck Schumer (D-N.Y.), Joni Ernst (R-Iowa), Marsha Blackburn (R-Tenn.), Jim Inhofe (R-Okla.), John Neely Kennedy (R-La.), Martha McSally (R-Ariz.), and Mitch McConnell (R-Ky.).

They had face time with none of them.


The offices of Ernst, Blackburn, Inhofe, and Kennedy confirmed to Task & Purpose that while the senators were unable to meet with Stayskal, their staff did. While Reed, McSally, Schumer, and McConnell's offices did not respond to a request for comment, Khawam told Task & Purpose that they did meet with their staff, and said that Reed and Schumer's offices voiced their support of the bill.

The lack of one-on-one time with members of the Senate wasn't a surprise. Congress had just returned from recess that week, and most of the lawmakers wouldn't be on the Hill until Monday evening. Add to it that seeing a Senator during an unscheduled visit is a long shot, and it ended up about as well as could be expected: with brief conversations with Senate staffers, and a promise that the message would be relayed to the senator.

Stayskal might have known that's how it would play out. He's made the six-and-a-half hour drive from his home in North Carolina to D.C. a dozen times in the past year, and they often end the same way. Yet he came to the capital anyway — he even rescheduled a PET scan to check the spread of his cancer — just on the off-chance that he could get some face time with a member of Congress.

But then again, his life seems to be defined by beating the odds. He's been doing it for more than 17 years in uniform.

He did it in Ramadi, Iraq in 2004 as a Marine infantryman when he was shot in the chest. He narrowly survived thanks to the life saving first aid provided by an Army Special Forces Medic — an act which inspired him to enlist in the Army after leaving the Marines in 2005.

In the years that followed, he continued to fight during numerous overseas deployments to Europe, Africa, and the Arabian Peninsula as a Green Beret.

Despite the ordeal he's been through, he's fighting to remain in the military: Earlier this year he filed an extension to avoid being medically separated from the Army, and he told Task & Purpose that he intends to file an appeal. Army life brings a steady paycheck, sure, but "mainly, I just really want to stay in, that's the reason," he said.

Richard Stayskal during his Special Forces deployment to Baghdad, Iraq in November 2009.(Photo courtesy of Richard Stayskal)

Stayskal joined the military after high school, because he was drawn to the idea that "somebody could say 'I'm going to give you myself, my body, everything. I'm going to work for this one effort, for unification of the country and protecting it.'

That hasn't changed.

And of course, he's also fighting against the Feres Doctrine, which bars his family from seeking legal recourse for a mistake that never should have happened.

Winning that fight is a tall order. Others have tried, and failed, but Stayskal says he's "gotta get it done."

"It's not over yet, and until it's over, you've gotta keep going."

****

The problems started for Stayskal in March 2017, while at Special Forces Dive School in Key West, Florida.

For the first time in his life the physically fit and athletic soldier was having trouble keeping up with his training. Unable to catch his breath and easily fatigued, he was sent home to Fort Bragg, North Carolina, and from there his health worsened.

Over the next several months Stayskal began to wheeze and had trouble breathing when lying on his back. Sometimes his vision would blur and his body would go numb. Then he began to cough up blood — a teaspoon, at first, but it was more by the week. Stayskal visited military doctors multiple times, including two emergency room visits — one to Womack Army Medical Center on Fort Bragg, and another out in town — but nobody seemed to know what was wrong.

It wasn't until June 2017 when he was finally able to see a civilian specialist out in town, that he found the cause of his declining health: He had lung cancer.

A scan taken of his chest just five months earlier in January at Womack Army Medical Center showed a mass on his lung. As Task & Purpose previously reported, Stayskal and his attorney with Whistleblower Law Firm in Tampa, Florida are alleging that care providers failed to properly identify the mass for what it was, and that if the cancer had been caught back in January, something could have been done.

The cancer has since metastasized to his pelvis, spinal bones, lymph nodes, liver, spleen, and the cancer around his neck has begun to grow again.

Richard Stayskal at home with his daughters after surgery in October 2017.(Photo courtesy of Richard Stayskal)

Despite the mistakes made, Stayskal, and medical malpractice victims like him are unable to bring a lawsuit against the government for negligence or wrongdoing, due to the Feres Doctrine, which is an interpretation of the Federal Tort Claims Act, a law which governs how people can sue the government for negligence.

Feres is the product of the 1950 Supreme Court case Feres vs. United States, which found that the federal government could not be held liable "for injuries to members of the armed forces arising from activities incident to military service."

While Feres was ostensibly established to protect battlefield decisions from being second-guessed in civilian court, in the nearly seven decades since the ruling it has been broadly applied to circumstances far removed from combat: incidents that occur during training; workplace violence; and military medical malpractice, to name a few.

A major critique of the doctrine is that it creates a double standard: One set of rules for civilians, and another for service members:

If a service member and a military dependent were to go to the same military hospital, and got the same treatment from a military doctor, and the same mistakes are made in both cases, the law would treat them quite differently: The civilian patient could sue and the service member could not.

"This has to do with humanitarian rights — a person's rights," Khawam said. "It has to do with discrimination. Discrimination against our military. I'd like for someone to come to me and tell me to my face that they're not entitled to the same rights as everyone else."

Because the Feres Doctrine is a Supreme Court precedent, it can only be changed one of two ways:

One would be to bring a case all the way to the nation's highest court in the hopes they reverse the original ruling — bearing in mind that the Supreme Court only reviews 80 to 100 of the 7,000 or 8,000 petitions it receives each term, and that it refused to hear a recent Feres Doctrine case in May.

The only alternative is to change the underlying law, the Federal Tort Claims Act, to make an exception for certain cases, like medical malpractice that occurs at a military hospital, far from a combat zone.

To do that, you have to go through Congress, which brings us back to Stayskal's most recent visit to the capital.

All roads lead to Capitol Hill

During those 48 hours that Stayskal and his attorney were in D.C., they went door-to-door to speak to lawmakers to convince them to keep an amendment for the SFC Richard Stayskal Military Medical Accountability Act in the House version of the 2020 National Defense Authorization Act.

If the defense bill passed with Stayskal's namesake bill — the amendment is estimated to cost $430 million over 10 years — it would carve out an exception to the Federal Tort Claims Act that would allow service members and their families to bring a lawsuit against the government for medical malpractice in cases similar to Stayskal's, but it does not extend to mistakes made in combat zones.

"A claim may be brought against the United States under this chapter for damages relating to the personal injury or death of a member of the Armed Forces of the United States 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.

Additionally, there's another version of the legislation, which was introduced by Sens. John Neely Kennedy (R-La.) and Mazie Hirono (D-Hawaii) on Tuesday.

However, both bills are facing resistance, particularly from Sen. Lindsey Graham (R-S.C.) who voiced his opposition to changing the Feres Doctrine on Tuesday, saying: "We have compensation for people who are killed or injured in the military. We're not going to open Pandora's box."

As Military Times' Leo Shane noted on Wednesday, Graham's statements mirror concerns from the Pentagon that allowing some service members to sue for damages would erode the military's current compensation system, create an inequity between those who could sue and those who could not — like someone who was harmed by malpractice in the states, versus a soldier who was injured due to negligence downrange — and may open the doors to a flood of lawsuits.

Khawam called those arguments "disingenuous."

As for Graham's claim that allowing troops to sue for certain medical malpractice incidents would open "Pandora's box": The vast majority of patients who receive care from the military can already sue the government. The only ones who can't are service members.

Of the 9.4 million individuals who are eligible for care from the military healthcare system, only 1.5 million are service members, the rest are retirees and military dependents, according to Department of Defense data.

So far, Graham, a former military lawyer in the Air National Guard, has refused to meet with Stayskal, despite repeated requests.

"It's frustrating, but I'm a military member too, he's an officer, I'm a constituent of this country," Stayskal said.

Because of the senator's influence among his fellow Republicans, Stayskal and Khawam have been trying to land a meeting but have so far been unsuccessful. They even dropped by the Monocle on Tuesday — a D.C. restaurant and lounge where they thought they might catch him during lunch — but to no avail.

"That's been a very big obstacle," Khawam said. "We've been working around the clock — literally — to resolve this. He won't meet with us, so that's a very difficult position to be in, when you can't talk to someone who has got the keys. So the gatekeeping issue continues to be a hurdle."

Graham's office declined to comment on whether or not the senator has agreed to meet with Stayskal.

Given Graham's opposition, this places added pressure on Stayskal and his supporters to find powerful allies — and though he's had facetime with both President Donald Trump and Vice President Mike Pence, what they really need is a champion in the Senate who will help keep the bill in the proposed defense budget.

"Even the six seconds I got to talk to the president, the vice president, we've gotten more time with them than some of the senators that mattered," said Stayskal, who visited the White House on Monday. The White House declined to comment on the meeting.

"You would think that would be completely the opposite," Stayskal added. "How are we making more headway with the president's attorney, the president, and the vice president, and the White House, but yet Sen. Graham… we haven't met with him?"

'Thank you for your service'

On Tuesday morning, Stayskal sat in the gallery as Rep. Jackie Speier (D-Calif.) took to the House floor to encourage her fellow lawmakers to support the Richard Stayskal Military Medical Accountability Act in the 2020 defense bill, which she and Rep. Richard Hudson (R-N.C.) introduced earlier this year.

Richard Stayskal, left, and his attorney Natalie Khawam, right, met with Rep. Jackie Speier (D-Calif.) in Washington, D.C., on Sept. 10.(Photo courtesy of Natalie Khawam)

"Service members and their families have been denied justice in their greatest hour of need," Speier said during her speech. "It also means there are no consequences for botched procedures and few incentives for military providers to improve care."

Speier called on members of the Senate to support the amendment in the defense bill saying "the media has taken notice, the NDAA has addressed it in the House. The question is, will the Senate? At a time when Rich should be able to spend his remaining days with those he loves, he has answered the call to fight."

"As Fort Bragg's Congressman, my top priority is making sure our service members, veterans and their families receive the support and quality health care they were promised," Hudson said in a statement to Task & Purpose. "I admire my constituent Rich and his family for their courage, and I'll continue to work to restore the civil rights of all service members."

Afterward, Stayskal and Speier met with Sen. Mitch McConnell's chief of staff to discuss getting the senator's support. McConnell's office did not respond to a request for comment on the meeting.

Then came an afternoon of drop-in visits.

At Kennedy's office, a staffer informed Stayskal and Khawam that he wasn't available. Fortunately for Stayskal, he had already met with Kennedy once before in August, and given that the senator introduced bipartisan legislation in Stayskal's name that morning, it seems like he's already gained his support.

Next, they walked down the hall to Martha McSally's office under the impression they'd have a chance to meet with the Arizona senator and former Air Force A-10 pilot, but were told that the meeting times she had available that day were reserved for her constituents from Arizona.

It's a common occurrence, Khawam told Task & Purpose.

"Easily half of the meetings go that way," Khawam told Task & Purpose. "It's either hit or miss. Getting a meeting with the senator or congressman happens here and there."

And indeed, Stayskal met with some of the senators on his list in the past, like Sen. Jim Inhofe (R-Okla.) who he saw during a similar visit back in January

"When we do, it's always well appreciated," Khawam added. "Especially because when Richard can meet with that senator or that congressman they can understand the situation and issue."

But, the other half of the time it stops at the front desk.

After Stayskal tells his story and explains why he's there without an appointment, he often gets the almost-obligatory "thank you for your service," before the conversation shifts. Then come the predictable, but unsurprising responses: "There isn't enough time today," or "the schedule is packed," followed by the polite request that he email the office so they can schedule an appointment for a few weeks down the road. Then there's a hasty exchange of business cards, and it's time to leave.

It may be business as usual on Capitol Hill, but for Stayskal and Khawam, it can be a tough pill to swallow, and it doesn't get easier over time.

"I know there's people behind us," Stayskal said, before adding "sometimes it definitely feels like we're a two-person show."

Over the last year Richard Stayskal, left, and his attorney, Natalie Khawam, right, have made a dozen trips to Washington, D.C., to try to rally congressional support to change the Feres Doctrine.(Photo courtesy of Natalie Khawam)

Over the past year they've made "probably hundreds" of door-to-door calls to lawmakers' offices, and that doesn't include the countless emails and phone calls, Khawam told Task & Purpose. "It feels like millions," she said.

Of the lawmakers they were trying to meet with, she said: "I understand they're limited with time and resources and availability, but so is Richard. He's missing his scans today so he can do this."

So that he could be in the capital, Stayskal rescheduled a doctor's visit that was meant to gauge the state of his cancer; how far it's progressed; and how much time he has left, he told Task & Purpose.

"I try to find a way to understand it as best I can," Stayksal said of the visits to the D.C., and his ongoing campaign for congressional support. "Sometimes it's upsetting. You think you're limited on time? You ought to talk to me about limited time."

"I understand they do have their own constituents and we've just come off a recess, so I try to take some things in stride, and just be a good champ about it, but it's not always the easiest, especially when I think 'oh man, I've got to come back here again?'" he added. "That's one more trip to leave the family, the kids; one more missed softball game, gymnastics; missing work; and pushing scans that are supposed to tell me how much cancer is in me, because it's spreading again right now."

Richard Stayskal and his wife Megan traveled to the nation's capital in April to testify on the Feres Doctrine, a 1950 legal rule that bars service members from suing the government for negligence and wrongdoing. (Task & Purpose/James Clark)

"So you get frustrated when it's like I'm willing to do all that but nobody wants to give me four seconds of their day?"

A quick tally by the end of the trip shows a few wins: A meeting with Rep. Markwayne Mullin (R-Okla.) who cosponsored the House version of his bill; a visit to the White House; and a public show of support from Speier on the House floor.

In the opposite column: There were a few meetings with staffers, but no new face-to-face talks with members of the Senate, whose backing might secure the bill's future.

As the 2020 defense budget comes closer to being finalized, and opposition to the new Senate bill emerges, time is running out —there may not be a next time for the SFC Richard Stayskal Military Medical Accountability Act, or its namesake.

WATCH NEXT: Richard Stayskal describes how the military botched his cancer diagnosis


CORRECTION: 9/12/19; 8:12pm; A previous version of this article mistakenly stated that neither Sen. Chuck Schumer or his staff met with Richard Stayskal. That is incorrect: Sen. Chuck Schumer's staff did meet with Richard Stayskal, but the senator did not.

(U.S. Army/Staff Sgt. Andrew Smith)

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