Active-duty service members need our help. Push Congress to abolish the Feres doctrine

According to CNBC, 250,000 people in the U.S. die every year from medical errors, making it the third-leading cause of death in the nation. However, as Potter reports, each year, practically no medical malpractice suits are filed on behalf of those serving active duty in the military—and Feres is essentially the reason why.

So, if you’re serving in the military and a doctor or facility misdiagnoses or mistreats you, or you’re sexually assaulted or harassed, you’re essentially unable to sue the government in a civil court.

This means that even when a soldier is injured, and medical malpractice or a non-combat injury happens, a victim is unable to sue. The Court reasoned that if Congress had wanted to allow such claims, Potter writes, then it would have more clearly written the doctrine.

Recently, several veterans have begun challenging Feres in court, aiming to get Congress to abolish it.

In the spring of 2019,  Army Green Beret Richard Stayskal, his wife, and Natalie Khawam, his Florida-based attorney, walked into the Rayburn House Office Building in Washington, D.C., to appear before the House Subcommittee on Military Personnel, chaired by California representative Jackie Speier. “Feres is the product of judicial activism and Congress’s silence,” Speier said in her opening statement.

In May 2017, Stayskal was diagnosed with Stage IV lung cancer. He’d been scanned just months earlier by a physician at the Womack Army Medical Center, who reviewed a lung CT scan and cleared him for duty. The doctor missed a malignant tumor. If the tumor had been seen, the treatment could have saved his life. Now, he had just months to live.

Khawam’s plan was to get the Senate Judiciary Committee to consider the wording of the FTCA in the hopes of reversing Feres, Potter reports. Her effort was widely supported by both Democrats and Republicans, but she was told that, ultimately, nothing could change without the support of then-Senate Judiciary chairman Sen. Lindsey Graham. Graham was unwilling to meet with Stayskal.

Unwilling to be refused, Khawam took Stayskal to the Democratic-controlled House Armed Services Committee.

“It was more important to get something through than it was to fight something you couldn’t fight,” Stayskal told Potter. Khawam built a case mimicking the workers’ compensation process, allowing a victim’s claims to be reviewed.

“The last thing I want to say is, this does affect me, obviously. But my children are definitely the true victims, along with my wife. The hardest thing I have to do is explain to my children when they ask me: ‘This doesn’t make sense. How is this happening?’ And I have no good answers to give them. I say, ‘That’s why I’m coming up here. To help convince these folks in Congress to change this,’” Stayskal testified at the time.

Paul Figley also testified, defending the Department of Defense’s perspective and defending Feres.

“If Congress overturns the Feres doctrine,” Figley said, “injured service members could obtain their benefits from the military compensation system and then seek tort damages. They or their attorneys would argue in our adversarial court that someone in the government was at fault for causing their injuries. Having members of the military litigate about who was at fault for a training accident, ill-fated combat mission, or surgical procedure would disrupt the relationship of mutual trust necessary to an effective fighting force.”

But, in 2019, a bipartisan bill sponsored by Speier became law, dubbed the SFC Richard Stayskal Military Medical Accountability Act of 2019. In other words, Congress officially recognizes that when a service member is injured outside of combat, it is not “incident to service,” and the victim has the right to be compensated for their loss and suffering.

Potter writes:

“As of December 31, 2021, the total number of Stayskal Act claims filed in the Air Force was 105; in the Navy, 101; in the Army, 149. Only two settlement offers had been accepted by claimants. Both of those were Air Force: one for $20,000 and another for $10,000. According to Khawam, no claims had yet been paid. Under the Stayskal Act, non-economic (pain and suffering) compensation is capped at $600,000.”

Three years later, the fight to end Feres continues.

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