Trial Magazine

Under the Federal Tort Claims Act (FTCA), the U.S. government can be held accountable when a government employee’s negligence injures or kills someone. But nearly 70 years ago, the U.S. Supreme Court held in Feres v. United States that the FTCA does not extend those rights to members of the armed services injured from activities incident to military service. As a result, brave servicemembers who protect our freedom and have been the victims of some of the worst medical negligence unrelated to combat injuries have no recourse.

An unfair standard. At the end of April, Rep. Jackie Speier (D-Calif.), chair of the House Armed Services Committee’s Subcommittee on Military Personnel, held a hearing on the “Feres Doctrine—A Policy in Need of Reform,” which featured two former servicemembers who suffered terribly due to medical negligence and a surviving military spouse who lost her husband due to incompetent medical care:

• Sgt. 1st Class Richard Stayskal, a former Green Beret, has stage IV lung cancer that military medical personnel failed to properly diagnose even though he visited different medical facilities multiple times with symptoms that warranted a fuller investigation than the care he received.
• Alex Witt, the wife of Staff Sgt. Dean Witt, who died during a routine appendectomy when a breathing tube was inserted into his esophagus instead of his windpipe, depriving him of oxygen and causing brain death.
• Rebecca Lipe, a former Air Force Judge Advocate, had multiple small pelvic hernias caused by improperly fitting body armor that was designed for men. Male military doctors repeatedly told her that her pain was “in her head” or caused by her menstrual cycle, denying her the care that she needed.

The hearing also included testimony from policy experts on both sides of the issue. However, even the policy expert who favored retaining the Feres doctrine, Paul Figley, conceded under questioning that medical negligence cases brought against the military were meritorious claims.

Unlike traditional tort “reform” hearings where opponents of civil justice automatically object to the expansion of legal rights for victims, the minority’s argument was simply that the subcommittee did not have jurisdiction over the issue. Chairwoman Speier responded that the subcommittee focused on transparency and trust issues related to servicemembers. She asked all the witnesses sharing personal stories whether their trust in the U.S. government had been eroded, and they all agreed that it had.

In need of a congressional fix. After the hearing, a bipartisan group led by Chairwoman Speier introduced H.R. 2422, the “Sergeant First Class Richard Stayskal Military Medical Accountability Act.” The bill’s original cosponsors from across the political spectrum include Reps. Guy Reschenthaler (R-Pa.), Richard Hudson (R-N.C.), Greg Steube (R-Fla.), Markwayne Mullin (R-Okla.), Ted Lieu (D-Calif.), Jamie Raskin (D-Md.), and Charlie Crist (D-Fla.).

The legislation would allow active duty military personnel to bring claims against the U.S. government for injury or wrongful death related to medical negligence at a covered military medical treatment facility under 10 U.S.C. §§1073d(b), (c), and (d). It includes a three-year statute of limitations from the date of the injury or the date the servicemember reasonably should have discovered the injury and its cause. The bill applies to pending claims with the statute of limitations period beginning on the date of enactment.

The bill does not change other FTCA provisions, such as those applying to damages and attorney fees. The FTCA prohibits punitive damages, and state compensatory damages caps apply. Claimants must exhaust administrative remedies first, and the statute provides for a federal bench trial only.

If you have clients whose stories would help us advocate on this issue, please contact AAJ Public Affairs.

Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.