New Law Permits Military Members To Seek Settlements For Medical Malpractice
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For almost 70 years, U.S. troops have been barred from bringing medical malpractice claims against the government. But now a soldier who has cancer is going to get his day in court. That's because he and his lawyer took his case to Congress. Jay Price of member station WUNC brought us the story.
JAY PRICE, BYLINE: Sergeant First Class Richard Stayskal was badly wounded in 2004 by a sniper in Iraq but recovered. Now, though, the boyish-looking 38-year-old Green Beret has terminal lung cancer. He says doctors at the Fort Bragg base hospital missed chances to diagnose it before it had spread. A civilian pulmonologist caught it but too late. Stayskal said he got angry when, after he complained, an administrator at the base hospital was dismissive.
RICHARD STAYSKAL: 'Cause it was like nobody cared about me - and I felt like I was not better than everybody else but, I mean, I was a Green Beret. You know, I was trained and had all this money put into me. And I figured, if nobody cared about me, who was caring about everybody else?
PRICE: So his family tried to hire an attorney.
STAYSKAL: I think my wife told about a dozen or so lawyers. And the same thing - they all said no; said too bad, sorry - nothing you can do.
PRICE: Because of something called the Feres Doctrine, based on a 1950 Supreme Court case that's made it nearly impossible for service members to bring a claim against the armed forces when they're harmed by a negligent act. Andrew Popper, a law professor at American University, says it's kept service members from being treated fairly in cases that have nothing to do with the hazardous training and combat inherent in military service.
ANDREW POPPER: This has been recognized as a problem for generations. There are case after case after case where federal courts write opinions that describe egregious malpractice and then, at the end of the opinion, write - but with great regret, unfortunately because of the Feres Doctrine, there's nothing we can do until the Supreme Court or Congress changes.
PRICE: It's come under assault from its beginnings by everyone from trial attorneys and members of Congress to the likes of Supreme Court Justice Antonin Scalia. Still, it survived decades of challenges. And for service members like Stayskal, it's been a daunting barrier - at least until his mother called Florida attorney Natalie Khawam.
NATALIE KHAWAM: And I thought, wow, this is just - sounds insane, and reached back out to them. I remember thinking, this is a slam dunk medical malpractice case.
PRICE: Khawam said that when she took his case, she wasn't aware of the impossible odds but quickly realized that the only way to win wasn't in court but rather in Congress. The lawyer and the Green Beret lobbied more than a hundred lawmakers. Representative Jackie Speier, a California Democrat, introduced a bill named for Stayskal. It didn't pass, but a compromise measure was included in the Defense Authorization Act (ph). It creates an administrative process to hear and settle medical malpractice claims. President Trump signed it into law Friday.
KHAWAM: I can't believe it's over. And the fact that we did it and all the people that thought or said that we couldn't - you know, now the gig's up? You know? We could, and we did. It's great.
PRICE: Popper says that while the new claims process is far from perfect and that such cases would be better dealt with in court, it's a good first step.
POPPER: If that works, it does open the door to include other obvious wrongs, like rape and sexual assault, that are clearly not part of anything involved in military service.
PRICE: Of course, none of this changes the fact that Rich Stayskal is gravely sick.
STAYSKAL: Still have two young girls to take care of and their futures to think about, as well as my wife, who, you know, will be eventually left alone.
PRICE: Even though they've beaten hard odds and won the right to a settlement, Stayskal and Khawam now have a second fight - they have to actually prove his case.
For NPR News, I'm Jay Price.
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