Victims of Military Med-Mal May Get Their Day in Court; More

Wayne J. Guglielmo, MA

Disclosures

February 25, 2019

In This Article

A Move to Let Active Military Sue the Government for Malpractice?

A Supreme Court decision that for nearly seven decades has effectively blocked military personnel from suing the government for medical malpractice and other mistakes may come under review by a House of Representatives subcommittee, according to a report in Military Times and other news outlets.[1]

A 1950 Supreme Court decision, known as the "Feres doctrine," gives the government virtually a "free pass" as far as active-duty military person injured by military medical personnel negligence. The Feres doctrine is based in part on the case of Rudolph Feres, an active-duty army officer who was killed in a barracks fire caused by a faulty heater. Reviewing this and related cases, the high court ruled that, under the Federal Tort Claims Act of 1946, the US government is not liable for injuries sustained by active-duty men or women as the result of negligence caused by military personnel.[2]

The ruling has sparked controversy for years, most recently as a result of the case of Sgt 1st Class Richard Stayskal, whose life has been severely shortened because Army doctors misdiagnosed his lung cancer. A similar mistake by civilian doctors would almost certainly have resulted in a medical malpractice suit—and possibly in a favorable judgment for the plaintiff.

In the Stayskal case, however, the Feres doctrine presents such a legal hurdle that the likelihood that the former Green Beret will prevail in any suit against the Army physicians who treated him and the government itself is far from certain. (Stayskal is currently being represented by the Whistleblower Law Firm, which is pursuing a $10 million suit against the government.[3])

For its part, the Supreme Court has insisted over the years in tossing the ball back to legislators.

Each time, the justices have said that "the legislative branch can fix this if they want to," says Sean Cronin, whose Florida law firm specializes in military medical malpractice cases. "It's surprising it hasn't been dealt with. We've had enough government changes over the past 30 years, and enough cases of the [precedent] being abused that we can see the need."[1]

This may change if Rep Jackie Speier (D, California), the newly elected chairwoman of the House Armed Services Subcommittee on Military Personnel, prevails.

In a statement, Speier listed a review of the Feres doctrine as one of her subcommittee's legislative priorities, adding that, in general, her panel's focus will be on "critical issues that impact not only our service members but their families who also bear the burden of sacrifice and commitment to our country."[1]

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