Soldier Who Led Military Malpractice Fight Gets Claim Denied (2)

He inspired a new law that allows troops to file claims with the military services for medical malpractice. But Army Green Beret Richard Stayskal, who suffers from Stage 4 lung cancer, got a dose of bad news: The Army denied his own claim.

Congress in December 2019 eased the seven-decade ban on troops or their families seeking compensation for injury or death at the hand of military hospitals. Troops have been barred from suing the military in federal civilian court for malpractice under what is called the Feres Doctrine, a Supreme Court legal precedent set in 1950. The 2019 law, passed as part of the fiscal 2020 defense authorization bill (Public Law 116-92), still doesn’t allow them to sue.

But Congress, over the Pentagon’s objections, set up a system of compensation with the military under the ‘Richard Stayskal Medical Accountability Act’ that allows service members to file an administrative claim with the branches. At the time, the Pentagon maintained that the military’s generous system of benefits was adequate.

(Photo courtesy of Richard Stayskal)

Army Sgt. 1st Class Richard Stayskal appeared before a congressional committee in 2019 to discuss the need to make changes in liability for the military’s medical system.

“It’s just a slap in the face,” Sen. Markwayne Mullin (R-Okla.), who was instrumental in negotiating the legislation as a House member, said in an interview. “The namesake of the bill — they denied his claim.”

Mullin, a member of the Senate Armed Services Committee, said all seven independent medical professionals who reviewed Stayskal’s claim called his situation “egregious malpractice.” While Stayskal may have the highest profile, his claim denial is part of a pattern.

There are 202 claims filed with the US Army, requesting $1.75 billion in damages, according to data provided by the service. The Army Claims Service acted on 155 cases and denied 144 of those, including 82 cases denied on merits of the case and 62 denied on procedural grounds, Sgt. 1st Class Anthony Hewitt, an Army spokesman, said in an e-mail. Forty-seven cases are awaiting official action, he added.

“The fact that you have that many being denied, that is a problem,” Mullin said, adding that colleagues of the people who may have been responsible for the medical treatment are evaluating the malpractice claims. “We allowed the fox to guard the hen house.”

Of the denials, 95 are initial determinations which may be appealed if the claimant chooses to do so while 49 are final, meaning they can no longer be appealed. The Defense Department appeals board consists of representatives of the Navy and Air Force, the services not involved in the adjudication of the claim, and the Defense Health Agency, Hewitt said.

Stayskal went to Womack Army Medical Center at Fort Bragg, N.C., in 2017 after feeling suffocated and coughing up blood. But the hospital misdiagnosed him with pneumonia during two visits, according to his congressional testimony before the House Armed Services Committee. By the time he saw a civilian doctor six months later, the lung tumor causing the problems had doubled in size. The tumor had showed up in X-rays done before he went to dive training, but no one told Stayskal or diagnosed him.

$20 Million Claim

Stayskal filed a $20 million claim, said his attorney Natalie Khawam, with the Whistleblower Law Firm, who’s preparing to file for appeal but doesn’t expect to win it. The law says the department will pay compensation of up to $100,000 per case, and refer higher amounts to the US Treasury for payment. The Congressional Budget Office estimated the cost of the legislation at $660 million over a decade.

Under the legislation, the Department of Defense has “the authorization and a good opportunity to right their wrongs, so that victims wouldn’t have to go to court to find justice for the injuries they sustained from negligent DOD providers that violated the standard of care on our service members,” Khawam said in a statement.

“Rather than implementing this new law properly and fairly, the DOD thumbed their nose to Congress, lied to victims, and rubber stamped denials across the board,” she said.

The Army said it couldn’t speak about Stayskal’s claim, but a senior Army official said in a statement that claims may be denied if they don’t meet the requirements of general tort and negligence law, and a medical error alone is insufficient. For claims to be approved, the Army must have failed to meet the medical standard of care, and that failure must have caused additional harm by adversely affecting an individual’s prognosis and treatment, according to the statement.

The Army recognizes the ordeal that Stayskal and his family are going through, the official said. The service will continue to make sure that Stayskal receives the best medical care and that he continues on active-duty service as he requested, the official said.

Mullin said he’s weighing legislation to make the claims process as objective as possible, which he could push to add to the national defense authorization act. Among the options he’s weighing are having a third party look at cases that were denied or have a different military branch evaluate another’s claims. Another idea is to have a separate panel, perhaps made up of a diverse group of retired doctors, to evaluate the claims, Mullin said.

“We need Congress to do something now, because unfortunately with Richard’s stage 4 cancer, time is not on his side,” Khawam said. “We all demand justice and accountability immediately.”

Mullin, other lawmakers, and Stayskal plan a press conference Wednesday to raise awareness of the outcomes of military medical malpractice claims.

To contact the reporter on this story: Roxana Tiron in Washington at rtiron@bgov.com

To contact the editors responsible for this story: Robin Meszoly at rmeszoly@bgov.com; Anna Yukhananov at ayukhananov@bloombergindustry.com