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 the January CT scan. Not long after his initial diagnosis, his cancer had advanced to Stage 4, Terminal. Soon after the terminal diagnosis, Stayskal retained a lawyer, Natalie Khawam of the Whistleblower Law Firm, who agreed to represent the Green Beret. She intended to file a $10 million lawsuit against the government alleging medical malpractice.
However, despite the blatant misdiagnosis of his cancer, his case had zero chance of ever being heard in a court of law. The Feres Doctrine, designed to prevent active-duty troops from suing the federal government, was a huge legal obstacle. But the ruling from 1950 was designed for the protection of doctors making life or death decisions in dealing with combat injuries. A civilian in Stayskal’s situation would have a clear-cut case to sue for medical malpractice.
Rep. Richard Hudson, R-North Carolina, heard about Stayskal’s story and believed that the time was right to adopt some changes to the Feres Doctrine. Hudson drafted legislation to change some of the parameters of the Feres Doctrine to allow service members the right to sue the government under specific circumstances.
“My internal sense of fairness tells me there ought to be some limited pathway for folks like Rich who can pursue this,” Hudson said in an interview. “He’s a real American hero who put his life on the line for his country and to see what he’s going through now is tough.”
Stayskal made several trips to Capitol Hill to lobby lawmakers to change the rule. He got another ally in the House Armed Services Committee in the person of Jackie Speier, D-California.
“It’s long past time that Congress fix this injustice,” said Speier, who chaired the hearing and introduced the bill in Stayskal’s name on April 30. The Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019 would make an exception to the Feres Doctrine for medical malpractice in non-combat cases.
“The current law denies servicemembers the same rights held by their spouses and families, all other federal workers, and even prisoners,” Speier said.
There have always been some in the Supreme Court that feel the Feres Doctrine wrongfully denies troops the due process afforded to every other citizen. “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received,” Justice Antonin Scalia wrote in a 1987 case. Stayskal has even got the ear of President Trump and Vice President Pence, having met both. The president said that he’d be watching the developments in this case.
The military has come out in support of maintaining the status quo for the Feres Doctrine. MG John D. Altenburg, a former deputy judge advocate general of the Army, testified before Congress to maintain the current system. “They are making sure the soldiers can train and be focused on their mission, which is operational readiness.” He characterized civilian court litigation as a “distraction” and “disruptive.”
Although the bill in Stayskal’s name enjoys bi-partisan support in Congress as well as with many veteran’s groups across the country, getting it through the Senate may be a tough situation. Senator Lindsay Graham, R-South Carolina, chairs the Senate Judiciary Committee and he went on record last month as being opposed to changing the Feres Doctrine.
“I have been a military lawyer for 33 years,” Graham said in a piece on Fox News. “The deal is: You sign up for the military, you get disability, you get benefits, your family gets well taken care of and you’re not able to sue. … I think it’s a trade-off that’s stood the test of time.”
But Stayskal’s lawyer is keeping up the fight with her client. “If we can’t better the standard of care for our troops, then what kind of country are we?” Khawam said. “How can we ask service members to protect us, but we can’t protect them?”
Photos: Stayskal family
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