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Suing for medical malpractice

Pentagon releases guidelines

Sgt. 1st Class Rich Stayskal poses with his weapon during a deployment to Iraq in 2009. Photo courtesy Rich Stayskal.

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On June 17, 2021 the Pentagon released guidelines on how service members can sue the Department of Defense for medical malpractice. For decades this has not been allowed.

According to information published in the Federal Register, the Pentagon will begin next month to pay service members or their estates for substantiated claims of less than $100,000 that have been filed within two years of a medical malpractice incident.

Since 1950, members of the military have been barred from suing the government for medical malpractice after the Supreme Court that year ruled in the case of Feres v. United States that active-duty troops could not sue the government for personal injuries suffered while serving.

This began to change when Sergeant First Class Richard Stayskal petitioned congressional lawmakers for a change.

He asked for help to find a way that he and his family could be made whole after suffering from military medical malpractice.

Military doctors had failed to inform Stayskal that he has lung cancer.

"When a service member has experienced some type of malpractice that has occurred in a military hospital or some type of military medical facility ... it becomes a military practice claim," said Michael McNeil of PCVA Law

Seeking redress, Stayskal and his attorney, Natalie Khawan, petitioned congressional lawmakers to "find a law ... that he and his family (could) be made whole after suffering from military medical practice."

The Richard Stayskal Military Medical Accountability Act of 2019 was included in the 2020 National Defense Authorization Act (NDAA), which former President Donald Trump signed into law on Dec. 20, 2019.

As of April 1, 2021 there are 227 cases totaling $2.16 billion awaiting adjudication.

The new regulation goes into effect in 30 days. While it includes a two-year statute of limitations, the regulation is retroactive and will allow the filing of claims from 2017, two years before the NDAA was signed into law.

"Essentially you marshal the facts of your claim of your injury, what happened, and you submit your claim through ... your branch of service," continued McNeil.

The claim is evaluated and then a determination is made whether or not to compensate the active duty service member.

Since this process is an administrative (and not a judicial) proceeding, there are no appeals or reconsiderations; the decision is final.

McNeil advises potential plaintiffs to collect all medical records in order for an attorney to evaluate them for four key elements - standard of care, breach of duty, causation and damages.

"This has been a long time coming, but it's here," said Stayskal. "It's a great day ... for service members to be able to be made whole through unfortunate situations."

Stars & Stripes contributed to this report.

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