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A New Law Allows Troops To Seek Compensation For Malpractice By Military Doctors

Congresswoman Jackie Speier, left, meets with Army Sergeant Richard Stayskal, center, his wife, Megan, and his attorney, Natalie Khawam, in Speier’s Washington office before an April 2019 subcommittee hearing on the Feres Doctrine.
U.S. House of Representatives
Congresswoman Jackie Speier, left, meets with Army Sergeant Richard Stayskal, center, his wife, Megan, and his attorney, Natalie Khawam, in Speier’s Washington office before an April 2019 subcommittee hearing on the Feres Doctrine.";

Congress has established an administrative process for service members to pursue malpractice claims. But they still can't sue in civilian court.

Ryan Adams' life was changed by what was supposed to be a routine hernia operation.

Adams is a Navy police officer stationed in Virginia. He said the surgery at a military hospital in Portsmouth two years ago resulted in nerve damage and other issues that left him on crutches.

"I can't run. I can barely walk. I can't stand for no more than 30 minutes. I can barely sit down," he said, speaking from his Virginia home with his family nearby.

Adams wants to file a lawsuit. But a 70 year old federal law called the Feres Doctrine blocks active duty military personnel from suing for medical malpractice.

Adams, 30, said he's now being discharged from the military because he can't do his job. He spent nearly eight years in the service and said he had dreams of becoming a fish and game warden when he left the Navy.

"It is so unfair, why my life has completely been ruined," he said. "I have an almost three year old daughter that I can't even pick up off the ground because of one doctor making mistakes."

Adams sent letters to politicians across the country advocating for an end to the Feres Doctrine. He heard back from only a few.

Now, there will be change - though not as much as Adams wanted.

In the final days of 2019, Congress included language in the National Defense Authorization Act that provides an avenue for troops to seek compensation for medical malpractice. They still can't file lawsuits in court, but they can pursue malpractice claims through a Pentagon review process.

In April, Congresswoman Jackie Speier, a California Democrat, chaired a subcommittee hearing with testimony from service members that she said helped turn the tide. Taking long, wheezing breaths, Army Green Beret Richard Stayskal told the subcommittee that military doctors misdiagnosed his terminal lung cancer as pneumonia, delaying treatment that could have saved his life.

"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," Stayskal said.

Speier introduced a bipartisan bill called the Richard Stayskal Military Medical Accountability Act of 2019 that would have gotten rid of the Feres Doctrine entirely and allowed troops to sue. Instead, Congress directed the Department of Defense to create the administrative process. Speier said the department will set aside $400 million to compensate service members over the next ten years.

"We got the second best thing," Speier said. "It's still a huge win."

Speier ran into reluctance with the original idea for service members to sue in court. The Pentagon feared that ending Feres would diminish the military's system which compensates troops injured on duty.

Other critics argued that allowing service members to sue would be a distraction.

"Litigation is automatically disruptive, it takes a lot of time, it pulls people away from what they're doing," said retired Army Major General John Altenburg, now a Washington, D.C. lawyer.

"We can't be compared to any workplace," Altenburg said. "We can't be compared to any grocery store or any corporation, because our sole mission is to defend the nation. Distracting us from that is inimical to national security."

Altenburg's view isn't accepted by everyone.

Dwight Stirling of the nonprofit think tank Center for Law and Military Policy noted that even prison inmates are able to sue for medical malpractice, and he said service members deserve the same right.

"We lock the doors of the courthouse, and we say we appreciate the fact that you are giving your life to help to preserve our freedom," said Stirling, who also serves as a lawyer in the California National Guard. "But we're not going to give you the access to go to court and hold the wrongdoer to account."

For Ryan Adams, the injured Navy police officer, the new law to provide compensation is major progress.

"I am so proud of our Congress and everyone who has pushed for there to be change in a bill that needs to be changed," he wrote in an email.

But he and other advocates said they won't rest until the Feres Doctrine is eliminated entirely.

This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans. Funding comes from the Corporation for Public Broadcasting.

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