Landmark decision allows military members to seek medical malpractice

Green Beret SFC Richard Stayskal called it a “Christmas Miracle.” 

The Senate passed the National Defense Authorization Act with an 86-8 vote on Tuesday. However, inside the bill is a provision, initiated by Stayskal, which will allow service members who have been victims of negligent medical care to finally be allowed to hold the government accountable. 

The provision sets aside for the first time $400 million for the DOD to investigate and compensate military medical malpractice claims. Service members, such as Stayskal have been denied the ability to hold doctors accountable until now.

But military members will still not be allowed to sue the Federal Government for damages, even though they’ll be allowed to seek damages and have medical malpractice claims investigated.

“Everyone involved in this conference, including the Department of Defense,” said Sen. Jim Inhofe (R-Okla.), “recognized the importance of fixing the medical malpractice issue in a common-sense fashion.”

“It’s a huge relief to know there’s better accountability,” Stayskal said in a television interview. “That service members are getting what they deserve. I’m hoping everybody’s going to share the joy [sic] us right now and the happiness that’s deserved for all the ones that feel left behind or forgotten about over the years.”

Natalie Khawam, Stayskal’s attorney, wrote: “We did the impossible!”

SFC Stayskal’s story began in 2017 when army doctors at Womack Army Hospital misdiagnosed his lung cancer as pneumonia. This delayed the treatment which could have saved his life. He’s now in Stage 4 with lung cancer.

Stayskal is a Green Beret at Ft. Bragg. He was wounded by a sniper in Iraq in 2004 as the bullet damaged both his chest and lung. Thirteen years later in early 2017, Stayskal was getting ready to attend the Special Forces Combat Diver Course in Key West, FL. Because of his Iraq war wound, he was required to undergo a CT scan to ensure that his lung, which had been injured, wouldn’t be an issue when conducting underwater operations. 

During the CT scan, a small mass on his right lung, which turned out to be a tumor that at that time was about an inch in diameter, somehow went unnoticed. A few months later, Stayskal would experience troubles sleeping and said he felt like he was drowning.

In May of 2017, Stayskal’s condition became critical. He was rushed to the Womack Hospital Emergency Room. Dizzy and wheezing, Stayskal was having severe chest pain. His wife, Megan, met him there. She was alarmed that the attending doctors had to “crackdown on his chest to get him to open his eyes.

The doctors took another look at his CT scan from a few months earlier, and this time noticed the tumor, writing “possible mediastinal mass.” They recommended a “transbronchial biopsy,” in Stayskal’s medical records.

And once again the system failed him.

Stayskal and his wife were told nothing of this. He was sent home with a diagnosis of “atypical pneumonia,” three prescriptions and a referral to a military pulmonologist for evaluation. The doctors told him everything was “fine.” 

Stayskal’s condition worsened and he began coughing up blood. Calling the base pulmonologist he was referred to, he was told that as a new patient, he’d have to wait a month for an appointment. Sensing something was really wrong, he asked for help again and was told, that “new patients aren’t a priority.” 

By June, his condition worsened to the point where the military gave him permission to seek a civilian doctor outside Ft. Bragg. His civilian specialist, Dr. Michael Pritchett gave Stayskal the bad news: he had Stage 3 Lung Cancer. In an interview with NBC News, Pritchett stated, “the fact that he went six months without a diagnosis allowed that cancer to grow and very likely advanced its stage.”

The tumor in Stayskal’s lung had doubled in size since his January CT scan. Not long after his initial diagnosis, his cancer had advanced to Stage 4, Terminal. 

Stayskal retained a lawyer, Natalie Khawam of the Whistleblower Law Firm, who agreed to represent the Green Beret soon after the Stage 4 diagnosis. She intended to file a $10 million lawsuit against the government alleging medical malpractice.

However, the Feres Doctrine prevents soldiers from seeking damages from the government for medical malpractice.

Initially enacted to protect military doctors from malpractice suits while treating combat injuries, this provision of National Defense Authorization Act won’t change that part of the Feres Doctrine, however, cases like Stayskal’s will no longer be swept under the rug. 

“It’s just an amazing feeling overall right now. I don’t have the words to describe it,” Stayskal said.  He returned to Washington to watch the historic vote inside the Senate chamber. “It’s a victory for everybody. For all the service members across the board.”

Speaking to his attorney, Stayskal added, “Without your support, we couldn’t have done that,” he said. “It’s been such a key part of what we’ve been doing since day one and I just can’t say thank you enough for everything.”