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Active duty service members could sue VA for medical malpractice under new bill

Surgery aboard the Military Sealift Command (MSC) hospital ship (U.S. Navy/WikiCommons)
May 03, 2019

House lawmakers put forth a new bill this week to permit active duty military service members to bring medical malpractice lawsuits against the U.S. government.

The legislation was introduced by bipartisan members of the House of Representatives after hearing testimony from veterans and military personnel who have been victims of medical neglect but were unable to pursue litigation to hold anyone accountable, Military Times reported.

Currently, the Feres Doctrine specifically bans negligence claims by active duty military personnel against the United States government, which is protected from litigation via sovereign immunity.

However, the new bill would change the 69-year-old doctrine by creating an exemption.

Democrat Rep. Jackie Speier, who is the chairwoman of the House Armed Services Committee’s personnel panel said, “When doctors fail to perform or woefully misread tests, when nurses botch routine procedures, when clinicians ignore and disregard pain, service members deserve their day in court.”

She added, “We’re not talking about special treatment. We’re talking about giving service members the same rights as their spouses, federal workers, and even prisoners. When compensation schemes are insufficient, service members should have their claims heard in the justice system.”

The new legislation will be named for Sgt. 1st Class Richard Stayskal, a Green Beret fighting stage four lung cancer because of Army doctors’ errors.

Stayskal testified at the hearing, stating that Army doctors overlooked his cancerous tumors numerous times while they still may have been treatable. He contended that being banned from filing a lawsuit for malpractice “bars any chance for (my family) to become whole.”

Defense Department officials argue that these changes will alter the current military compensation and benefits system.

Jessica Maxwell, a department spokeswoman said, “A combat injury or death would appear to be valued lower than an injury or death where a tort claim would be allowed. Such an inequity toward members injured or killed in military operations could not be sustained.”

Rebecca Lipe, a former Air Force judge advocate, testified that she has internal injuries due to having to wear body armor that didn’t fit right while she served in Iraq. She said military doctors ignored her claims and told her she contracted a sexually transmitted disease from having an affair.

Lipe said, “I’ve completely lost faith in the Defense Department to take care of me.”

Under the new bill, only errors that take place at military hospitals and clinics would be applicable. Cases that would not be able to file suit would include medical treatment on ships or battalion aid stations or any incident in combat.

If the bill is enacted into law, only pending cases and new cases filed after that point would be eligible.

“Allowing service members to sue the Department of Defense for medical malpractice will help root out this rot. There are few incentives better than the threat of legal action to push an organization to change its behavior. This would lead to better quality care for our service members and higher levels of readiness,” Rep. Speier said.