Congress Can and Should Abolish the Feres Doctrine by Passing Legislation to Allow Medical Malpractice Claims by Active Duty Military Personnel

The Feres Doctrine, originally passed into law in 1950, was designed to expand the government’s immunity from lawsuits. Most importantly, it prevented military personnel from suing the US government for injuries that were “incident to military service.” This has left active-duty service members who are victims of non-combat-related harm, including medical negligence, without legal recourse.

On May 20, 2019, the Supreme Court had a chance to reconsider the constitutionality of Feres and chose not to do so. It is not the first time the highest court in the land could have taken a stand. In the 1987 decision United States v. Johnson, the court barred the widow of a Coast Guard pilot killed in a rescue mission from filing a claim under the Federal Torts Claim Act (FTCA), citing Feres as the reason. Supreme Court Justice Antonin Scalia dissented, writing that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

We do not agree with the most recent decision by the Supreme court. Congress has the authority to abolish the Feres doctrine.They should do the right thing and pass legislation that would allow active duty military personnel to file a claim under the FTCA when they have been harmed by the medical negligence of a military health care provider.

A new chance for our service members:
The Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019

A bill has been introduced by Rep. Jackie Speier (D-CA), chairwoman of the House Armed Services Subcommittee on Military Personnel, that would make it possible for military personnel and their families to sue the US government for medical malpractice. The bill has bi-partisan support and is co-sponsored by Richard Hudson (R-NC), Jamie Raskin (D-MD), Guy Reschenthaler (R-PA), Ted Lieu (D-CA), Markwayne Mullin (R-OK), Charlie Crist (D-FL), and Greg Steube (R-FL).

According to the press release from the Subcommittee: “For nearly 70 years, servicemembers have not been able to sue military medical providers after being misdiagnosed, mistreated, or subjected to botched surgeries, even though this malpractice occurred in health care settings in which all other Americans have that right. By creating an exemption to the Federal Tort Claims Act to allow servicemembers to sue the military for medical malpractice, the Stayskal Act would give servicemembers the same right as the fellow citizens they serve to protect.”

The Stayskal Bill (H.R. 2422) was introduced on April 30, 2019 and is its first stage of legislative process.

The story of Sergeant First Class Richard Stayskal

Among those giving testimony before the House Armed Services Subcommittee on April 30th was Army SFC Richard Stayskal. Stayskal originally enlisted in the US Marines in 2001, where he served as a machine gunner and sniper for four years. In 2004, he was critically wounded during battle in the Al Anbar province of Iraq by a bullet that pierced his lung and was honorably discharged from the Marines in 2005. In spite of his wounds and his service, Stayskal enlisted in the US Army in 2006 and became a Green Beret. He has been awarded a number of commendations, including a Bronze Star medal and a Purple Heart.

He had a routine health screening at the Womack Army Medical Center in January 2017, during which a CT scan revealed a mass was on his right lung. It was never diagnosed for what it was: cancer, which has now metastasized to his pelvis, spine, lymph nodes, liver and spleen. A husband and the father of two, he may have only a year to live. Had the military doctors and radiologist not misdiagnosed the cancer, SFC Stayskal may have had a greater chance.

We at the Bertling Law Group urge Congress to pass the Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019, and for the Senate to follow suit and for the President to sign this important bill into law. The least we can do for those who put their lives on the line is to afford them the same right to sue for medical malpractice as civilians do.

Our skilled veterans’ rights lawyers are advocates for military members and their families

If you have questions or concerns about harm that has come to you or a family member as the result of medical negligence on the part of a military medical professional, please contact us online or call us at 844-295-7558 to schedule a free, confidential consultation. Let your congressperson know that you support the rights of active military personnel to file a claim for medical negligence.