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Military families can’t sue for medical malpractice — but the law may soon change

Womack Army Medical Center, Fort Bragg, N.C. (U.S. Army/Released)

Legislation named after a Fort Bragg, N.C., soldier that will allow some members of the military to file claims to be compensated by the government for medical malpractice is one step closer to being signed into law, after the House of Representatives passed the bill this week.

It is a significant departure from decades of existing law — guided by the Feres Doctrine, so called because of a 1950 Supreme Court case — which prevents military service members from suing for compensation for injuries that were a result of military negligence.

The bill could have widespread impact for military families dealing with terminal cancer diagnoses that were missed in earlier stages, when the disease had a greater chance of being treated. Multiple families who have talked to McClatchy as part of its ongoing investigation into veteran cancer rates have said their diseases were initially misdiagnosed.

Sgt. 1st Class Richard Stayskal had been having difficulty breathing when he went to the emergency room at Womack Army Medical Center. An X-ray showed he already had a sizeable tumor, but it was missed by his attending physicians, he said, and he was misdiagnosed in January 2017 with walking pneumonia instead.

Stayskal returned to the emergency room in May, again struggling to breathe. That time, they caught the mass, but it was too late. He was diagnosed with stage 4 lung cancer in June 2017.

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He is terminally ill.

“Now there’s hope for some kind of recourse. It’s an exciting day. There’s hope that (military families) are not going to go unheard anymore. Unfortunately there’s going to be so many who aren’t going to fall in the window (of eligibility for recourse) it allows,” said Stayskal, interviewed by McClatchy on Capitol Hill as he visited the lawmakers who had championed his cause.

Language influenced by the SFC Richard Stayskal Military Medical Accountability Act of 2019 was included in the final version of the 2020 National Defense Authorization Act. The House passed the bill Wednesday; the Senate still has to vote on the final version of the bill, but it is expected to pass that chamber. President Donald Trump has already indicated he will sign the legislation.

The bill, co-sponsored by Rep. Richard Hudson, R-N.C., Rep. Jackie Speier, D-Calif., and others authorizes the “Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death of a member of the uniformed services that was the result of medical malpractice caused by a Department of Defense health care provider.”

The bill is applicable to all military personnel who experienced medical malpractice by a Department of Defense health care facility retroactive to January 2017, the date of Stayskal’s missed diagnosis. While that limits which military families could seek recourse, Stayskal’s attorney, Natalie Khawam, called it an important first step.

“We opened the door,” Khawam said, to the possibility that the provision could be expanded to more military families in the future.

The patients who could be affected by the existing legislation include former Navy Lt. Elizabeth Rubin, 27, from Kansas City, Kan., who said she was misdiagnosed at Naval Medical Center Portsmouth, Va.

“I got my tumor checked out March 2018, and they said it was nothing to worry about,” Rubin said. “(It) ended up being stage 2 breast cancer.”

Records Rubin provided McClatchy show that doctors at Naval Medical Center Portsmouth conducted an ultrasound March 15, 2018, and had a telephone consultation with her days later in which they “informed patient that breast (ultrasound) was normal.”

Military health officials typically don’t comment on specific patient cases, citing patient privacy. In a response to McClatchy, the Defense Department said it could not comment on the medical malpractice bill until it is signed into law.

“We are unable to comment on pending legislation,” said spokeswoman Lisa Lawrence.

Rubin celebrated the news of the bill’s passage in the house, and pending passage in the Senate.

“Military doctors have not been held accountable for the care they provide to military patients that have no choice but to be seen by them,” Rubin said. “My cancer could have been caught a year and a half sooner with appropriate attention and care.”

Stayskal said Thursday that “medically speaking, I am in a lot of pain right now, from the immunotherapy I am on. I just kind of started, so I am still adjusting to it.”

Stayskal said seeing his bill so close to becoming law was incredibly meaningful to him.

“I don’t know if I have all the words for how happy I am for them (other military families),” Stayskal said. “This will provide some sort of relief and maybe a sense of not feeling alone and left. You know, that’s how I felt for so long, just like, nobody cared.”

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©2019 McClatchy Washington Bureau

Distributed by Tribune Content Agency, LLC.