Bill takes aim at injustice for service personnel hurt by military medical care

feresstayskal-267x300Members of Congress have taken steps aimed at allowing service members to pursue actions in the civil justice system when they suffer harms while seeking medical services, a fundamental civil right now denied to military personnel.

Members of the U.S. House Armed Services Committee heard powerful testimony from a Green Beret, an airman, and a judge advocate general about the  need for a bill introduced by Rep. Jackie Speier (D.-Calif.) — a measure that has won bipartisan backing — to correct problems caused by a 69-year-old U.S. Supreme Court ruling in a case involving the Federal Tort Claims Act. That act governs who can bring a claim for negligence at a military or other government health care facility.

Active duty military personnel cannot bring a medical negligence claim for care at a military facility. This is called the “Feres doctrine,” after the U.S. Supreme Court decision, Feres v. United States, 340 U.S. 135 (1950). Under the Feres doctrine, members of the United States armed forces are barred from making a claim against the United States for personal injury or death arising “incident to service.” Military medical treatment received by a service member, while on active duty, has been held by the courts to be “incident to service,” and, thus not actionable, even if that treatment was for a purely elective procedure, and even if the procedure was performed negligently.

The doctrine has allowed serious injustices to go unremedied, service personnel told House members in a subcommittee hearing. Army Sgt. 1st Class Rich Stayskal, who is battling terminal Stage IV metastatic lung cancer, described how medical doctors repeatedly missed diagnosing his disease. They did so at early stages when it could have been treated successfully and not put his health, military career, family, and life at risk, he said. Now, under Feres, he has no remedy for what he says was his negligent medical care.

Stars and Stripes quoted him telling a House subcommittee hearing: “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.”

Stayskal, after 17 years as a Green Beret, can’t stay in the military, and observed: “The failure to detect my cancer … is a mistake that allowed an aggressive tumor to double in size and rob me, rob my life of my family, without any recourse. My children are definitely the true victims, along with my wife.”

Air Force Staff Sgt. Dean Patrick Witt suffered from awful medical care after he had his appendix removed, his widow told the House panel. As the military newspaper described his ordeal:

Following Witt’s appendectomy at Travis Air Force Base in California, a nurse administered a lethal dose of fentanyl and incorrectly inserted a breathing tube into his esophagus. Witt subsequently suffered from respiratory and cardiac arrest and died after being left in a vegetative state for three months. Witt’s wife said the same nurse was linked to at least three other deaths, including one before her husband died. ‘If the appropriate action had been taken on this nurse during her first lethal, negligent episode, Dean would still be alive today,’ [widow Alexis] Witt told lawmakers.

The website has described how Speier’s bill would deal with Feres and the federal tort act:

The SFC Richard Stayskal Military Medical Accountability bill would amend the Federal Tort Claims Act to allow military personnel to sue the federal government for damages relating to injury or death in cases of medical malpractice by military doctors. The bill would pave the way for those with pending claims against military providers at the time of passage. It would also allow service members with future claims to sue. It would not apply to past cases, nor would it apply to mistakes made outside military medical facilities or clinics, whether in combat, at battalion aid stations or on ships.

Task & Purpose, a popular and respected website covering military and veteran issues, has dived deep into the wrongs stemming from the Feres doctrine, also explaining why it has persisted and has support in some quarters:

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.

Indeed, People Magazine reported that the doctrine was applied to Army Capt. Katie Blanchard, a former nurse who has been blocked from seeking justice after a civilian subordinate attacked her, slashing her with a razor blade and scissors, then spraying her with gas from a plastic bottle and setting her ablaze. Blanchard said she had warned supervisors and colleagues that her colleague, who since has been convicted of assault with intent to commit murder, was dangerous. After seeing limited success with internal attempts to avert further such incidents of workplace violence, she sought to file a personal injury claim that was barred by the Feres doctrine because she was active duty when attacked.

In my practice, I see not only the harms that patients suffer when seeking medical services, but also the havoc that can be wreaked on service members and their families when they receive military medical care at hospitals or clinics run by one of the armed services or the Department of Veterans Affairs, notably when the treatment is far from battlefields and no way can be construed as affecting discipline and order. Readers might want to check our law firm’s website for more details on who can and cannot sue over malpractice events at military hospitals and clinics.

But consider, for example, that a legal action in the Pacific Northwest asks the Supreme Court itself to reconsider its Feres ruling, which was applied to block Walter Daniel, a grieving husband and former Coast Guard officer, from legal recourse in the death of his wife, Navy Lt. Rebekah “Moanie” Daniel. She was a healthy 33-year-old woman and a labor and delivery nurse herself. Shortly after delivery in her low-risk pregnancy, however, she bled to death at the Naval Hospital Bremerton in Washington State.

He sued the Navy for medical malpractice, with court documents showing its “doctors failed to perform vital tests, to employ an obstetrical balloon — a standard device used to halt postpartum hemorrhage — and to start massive blood transfusions until too late.”

Daniel’s case is blocked, for now, by the fact that his deceased wife was active-duty military at the time she gave birth. If she had been treated in the same hospital by the same doctors and suffered the same tragic outcome, but hadn’t been active duty, her widower’s case would not have been barred by Feres.  That doctrine only applies to injuries of active-duty personnel themselves.

That’s an important but unfair distinction, Dwight Stirling, a former military attorney and CEO of the Center for Law and Military Policy, testified to House members. Calling Feres “the most spurious, discredited legal doctrine in our history,” he noted that, “To [conservative Justice Antonin Scalia], the ruling was activism at its worst. He also condemned there was a double standard at the heart of the doctrine, that it only applies to military personnel, not to their family members or retirees.”

Though doctors, hospitals, and insurers long have sought to make medical malpractice lawsuits their professional bogeyman, such actions in the civil justice system, and outside military settings, have proven invaluable in not only assisting the harmed but also in policing and fixing wrongs and ousting wrong-doers.

In the private world, a small number of doctors get sued for malpractice, often repeatedly, and their colleagues, hospitals, and licensing authorities need to get them out of medicine and injuring the innocent. With taxpayers both owing military personnel and their loved one’s quality medical care for their brave service and footing a giant bill to do so, it would seem like good sense to allow the benefits of medical malpractice actions to improve military medicine, too. Feres needs a major overhaul, and service members deserve their chance to seek justice in civil courts as the constitution guarantees.

Photo credit: screen capture, ABC11-Raleigh, N.C., video
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