Many do not realize that before 2020, if a military hospital committed medical malpractice against an active duty servicemember, that servicemember had no legal recourse. Unlike the rest of us, active military personnel were prohibited from bringing claims against the United States for negligence.
This seemed like an egregiously unfair situation.
Any of us can use the Federal Torts Claims Act (the FTCA) to bring claims of negligence against the United States. A very common example of this is medical malpractice by the VA against a veteran. That veteran files an administrative claim against VA and if VA denies the claim, then that veteran can sue in federal court.
But active military servicemembers could not sue military hospitals or even bring an administrative claim.
The reason had to do with something called the Feres doctrine, from a case called Feres v. United States. The United States Supreme Court concluded that, even though there was a way from other people to bring a claim against the United States, the Government is not liable under the Federal Tort Claims Act for injuries to servicemember where the injuries arise out of or are in the course of activity incident to service.
The reasoning likely makes sense in some circumstances. It may be that you don't want an infantry sergeant to second-guess giving an order in battle because they fear being sued. However, , it does not make sense if a servicemember is stateside and having mundane medical care that is not related to service, such as having their doctor diagnose cancer in time to save your life.
Such was the case for Sgt. 1st Class Richard Stayskal, a member of the U.S. Army's Special Forces. the U.S. Army delayed negligently diagnosing his cancer until it had progressed to the point it was uncurable. And, according to the law at the time, there was nothing he could do to hold the responsible doctors accountable.
But, like any good Green Beret, he didn't give up. He lobbied Congress to change the law - to overturn the Feres doctrine and allow servicemembers to bring claims against the United States for medical malpractice.
Finally, in the National Defense Authorization Act of 2020, congress made a slight change. They modified the Feres doctrine just a bit. Instead of no ability to make a claim against the U.S., active duty servicemembers could now make an administrative claim against the service branch they alleged caused them harm. The change in law was called the SFC Richard Stayskal Military Medical Accountability Act.
Where does a servicemember's claim go? Who reviews that claim to determine if it has any merit? The service branch they alleged caused them harm gets the claim and reviews it to determine if it has any merit. It should come as no surprise that - as of October 2022 - the respective service branches had granted only 2% of all claims.
Can the servicemember then sue, like the veteran in the scenario above? No. Once the service branch denies the claim, their claim has ended.
Last week, SFC Stayskal had his claim denied.
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