Green Beret Misdiagnosed, Now Dying From Cancer
The military medical profession may soon be operating under a different set of parameters. The Richard Stayskal Bill has passed the House and it has been forwarded to the U.S. Senate. It is part of the National Defense Authorization Act, which is the annual Pentagon policy bill.
This bill, should it pass the Senate, will overturn the Feres Doctrine, a 1950 Supreme Court ruling that forbids active-duty military soldiers, sailors, airmen and Marines from suing the federal government for medical malpractice and negligence.
The Feres Doctrine was initially put in place to protect military doctors who were treating combat casualties. Doctors in those positions have to make split-second decisions in order to save the lives of troops wounded in combat.
This newest legislation isn’t going to change that. Doctors treating soldiers wounded in combat and taking measures to save their lives will still be afforded that protection. But doctors who are treating troops for other medical conditions may soon be held accountable in a court of law where troops may be allowed to sue for medical malpractice.
This legislation is named after SFC Richard Stayskal. Stayskal is a Green Beret at Ft. Bragg. Stayskal was wounded by a sniper in Iraq in 2004 when a bullet tore through his chest and lung. He kept the round that was removed from his lung as a reminder of how fragile life is. Little did he know how prophetic that would be.
Thirteen years later, Stayskal was getting ready to take on the Special Forces Combat Diver Course in Key West, FL. Because of his old bullet wound, he was required to undergo a CT scan to ensure that his lung that had been injured wouldn’t be an issue when conducting underwater operations.
During the CT scan, no one noticed a small mass on his right lung, which turned out to be a tumor that at that time was about an inch in diameter. A few months later, Stayskal would experience troubles sleeping, and said that when he would wake up he would feel like he was drowning.
In May of 2017, Stayskal’s condition became critical. He was rushed to the Womack Hospital Emergency Room by ambulance. He was having severe chest pain, wheezing and felt dizzy. His wife, Megan, met him there. His wife was alarmed that the attending doctors had to “crackdown on his chest to get him to pop his eyes open. Why is he not breathing,” she worried?
The doctors took another look at his CT scan from a few months earlier and this time noticed the tumor. They diagnosed it as “possible mediastinal mass” and, in Stayskal’s medical records, recommended a “transbronchial biopsy.” And yet 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”.
But despite his prescriptions, Stayskal wasn’t fine and 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 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