After military doctors missed a lung cancer diagnosis, Sgt. First Class Richard Stayskal has been fighting to change the Feres Doctrine. Feres protects the federal government from medical malpractice claims brought by servicemembers against military medical professionals. As a result, lawmakers passed the Stayskal Act in 2019, authorizing the Department of Defense to pay out medical malpractice claims to military personnel. Three years later, Stayskal’s own claim was denied.
In 2017, Sgt. First Class Richard Stayskal was given the all-clear by his military physician to go to U.S. Army Special Forces dive school. The exam included a CT scan, which was required due to a previous combat injury to the area.
Soon after, the Green Beret started having trouble breathing. A trip to the ER on base simply resulted in a pneumonia diagnosis and he was sent home. Unfortunately, Stayskal’s symptoms began to worsen to the point that he was coughing up blood.
After nearly a month of begging, he was approved to seek treatment from a civilian specialist. The pulmonologist immediately ordered a CT scan, and it wasn’t long before Stayskal was diagnosed with terminal lung cancer.
Devastated and confused at how his luck could turn so quickly, Stayskal requested his military medical records for review. It turns out the mass found by the pulmonologist was actually noticed by his prior military doctors. Records from the ER visit indicated an abnormality, a potential mediastinal mass, that needed attention. The records even noted the need for a transbronchial biopsy.
Unfortunately, those statements never made it from the records to the patient. In the month between his discharge and the biopsy ordered by the civilian pulmonologist, the tumor had metastasized and spread to other organs. Stayskal was given a few years to live at best. The specialist told his patient that if he had begun treatment for the tumor in January, his chance of survival would have been 90 percent.
In preparation for a federal lawsuit against the U.S. government, Radiologist Louis Leskosky was hired to review the soldier’s CT scans. Leskosky found that an abnormal mass was obvious in the initial CT scan taken during Stayskal’s dive school physical examination in January 2017. The abnormality was so clear, the board-certified expert says, that it is a clear case of medical malpractice. By the time the second CT scan was ordered 6 months later, the tumor had doubled in size. This sounds just like any other medical malpractice claim, right? Not quite.
The Feres Doctrine
In Feres v. US, the Supreme Court established the Feres Doctrine (1950). This doctrine bars claims by military personnel under the Federal Tort Claims Act when seeking compensation for injury or death suffered “incident to service” caused by the negligent or wrongful act or omission of any employee of the government.
There are extremely valid policy reasons behind the doctrine, namely to discourage suing fellow soldiers for actions taken during the chaotic, life-threatening emergencies of war.
In support of the Doctrine, the Department of Defense has argued, “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.”
Yet, Sgt. First Class Stayskal’s missed diagnosis didn’t happen in the throes of combat. It happened right at home during a routine exam. There was nothing war-like about a physical with a medical professional. It just didn’t seem right that honorable American soldiers were unable to expect even adequate medical treatment from the largest employer in the world.
Stayskal’s Fight for Change
Stayskal and his family turned to Washington, meeting with various representatives to legislate change. Even between cancer treatments, the Marine veteran and Army Green Beret carried on, doing what he could for his fellow soldiers. They first attempted going through the Senate Judiciary Committee, but to no avail. Next, they turned to the House Armed Services Committee, who eventually drafted a bipartisan bill that provided a pathway for soldiers to seek compensation.
As a result of these efforts, the 2020 National Defense Authorization Act included a provision allowing military members not to sue the government, but to file claims for injury or death as a result of medical malpractice by military doctors. This provision came to be known as the SFC Richard Stayskal Military Medical Accountability Act of 2019. The Act appropriated millions of dollars to the Department of Defense for the purposes of paying out medical malpractice claims. Active duty service members now have the right to be compensated for malpractice in military facilities in cases that are unrelated to combat.
Unfortunately, this victory for American soldiers did not include the very man who fought for it. Three yeas after the Stayskal Act became law, SFC Stayskal’s own medical malpractice claim was denied. While the Army admitted the standard of care was not met, they found no causation.
While the Stayskal Act is a step in the right direction in compensating well-deserving military members, it’s far from ensuring safe military medical treatment akin to that in the civilian world. At best, the Act provides an avenue for servicemembers to recover funds for malpractice. It does not, however, diminish the tenants of the Feres Doctrine.
One recent ruling gave some hope to judicial changes to the Doctrine. In 2020, the Central District Court of California denied the government’s motion to dismiss a suit on the basis of Feres. In Spletstoser v. Hyten (2022), Colonel Kathryn Spletstoser, alleging sexual assault at the hands of General John Hyten. In their ruling on the motion for dismissal, the Court posed one reason where Feres should not be used to bar a lawsuit. An incident, such as an assault occurring in a civilian hotel room while the parties were getting ready for bed, could not be considered “incident to military service” under Feres.
Military advocates are continuing the fight for a more equitable interpretation of the Feres Doctrine. At the same time, each case heard in a court of law has the potential to further etch away the Doctrine’s bite. The only way to erase Feres, however, is by an act of Congress. For that, we are still waiting.
Stayskal himself plans to appeal his case while continuing to fight for others. “I stand here today on behalf of an entire generation and on behalf of future generations to ensure what happened to me will never happen again and I will give every breath I have for them.”