Health

Feres Doctrine: Soldier with cancer fights to change law shielding military from malpractice suits

Nearly a decade after his last overseas deployment, Army Sgt. Richard Stayskal is fighting new battles: a cancer diagnosis and a legal roadblock known as the Feres Doctrine.

Currently, active duty service members cannot sue for medical malpractice or negligence because of the 1950 Supreme Court decision in Feres v. United States. But the House recently passed a new provision in the annual National Defense Authorization Act, or NDAA, that could overturn part of that ruling.

“[Military servicemen] don’t have a legal right or have any legal recourse when it comes to malpractice,” said attorney Natalie Khawam, who represents dozens of service members blocked from suing the military for malpractice or negligence.

Khawam said that the law was designed to protect medics who were working in combat. But the ruling’s broad application has given Stayskal almost no recourse after he said doctors at Fort Bragg’s Womack Army Medical Center ignored a tumor growing in his lung.  
 
“I knew deep down, something was not right,” said the Green Beret and former Marine, who was also wounded in Iraq in 2004.  
 
Stayskal said that when he was allowed to see a civilian specialist in June 2017, he discovered that Army doctors had noted the growth at two separate appointments — but did nothing. He said that his civilian pulmonologist was initially the one to raise the issue, and ask “why nobody told us six months ago.”

“He said he truly believed, deep down, that six months of early notice would have been a big difference,” Stayskal said.

“[At the time] I think I took it as like a flu,” he added. “I was like, ‘Oh, ok. We’ll just get this thing fixed. It’s no big deal.’ I think everybody else knew differently.”

Now, Stayskal said he’s suffering from Stage 4 cancer and is terminally ill.  

He’s not alone. Army nurse Katie Blanchard’s case is also blocked.
 
“I did everything right,” Blanchard said. “I went to the people that I could go to, I asked for help, I made my command aware, and they failed me.”  

Blanchard was working as a hospital supervisor at Fort Leavenworth in Kansas when an erratic employee — whom she’d repeatedly discussed with supervisors — doused her with gasoline and lit her on fire.
 
“I went through a phase where I almost wished I didn’t live through it,” she said, “just because of how difficult it was and how I couldn’t be with my children how I’d wanted to be.”
 
Blanchard’s attacker was sent to prison. But she said her former supervisors have been promoted, and that the system that allowed her attack — and others — hasn’t changed.
 
“The military that I knew and that I loved and that my family loved had left me behind…” she said. “I knew that if I lived, I wanted to change the system.”  
 
In April, Blanchard was in the audience as Stayskal testified before the House Armed Services subcommittee chaired by California Democrat Jackie Speier.
 
“I have what’s called an outrage meter…” Speier said. “And when it goes off in a way that gives me heartburn, I know I have to do something.”  
 
Those efforts helped get a narrow exception to the Feres Doctrine passed in the House. Now that it’s up to the Senate, Stayskal is using the time he has left to keep fighting for change.
 
“I’m unable to continue serving downrange and overseas in that capacity, but I’m not done serving my country,” he said.  

When asked how he would feel if the measure didn’t make it through the Senate, Stayskal said that “I don’t want to believe that it’s not going to go… I feel like it’s it’s gonna happen. I have to. I want to.”

Stayskal hopes the bill that carries his name will make it into the final NDAA legislation. But even if it passes, it will only apply to medical malpractice cases. Cases of negligence, like Blanchard’s, will still be blocked from going to trial.

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