New Law Allows Medical Malpractice Claims by Military: A Progress Report

Regime Change: The Stayskal Act

In the summer of 2019, I authored a TortSource article about an upcoming congressional vote on a bill that aspired to fix the nearly 70-year ban on medical malpractice lawsuits by active-duty military. That bill did, in fact, later pass both houses of Congress and was signed into law as the SFC Richard Stayskal Military Medical Accountability Act of 2019 (Stayskal Act or Act). Implementation began in 2020.

The Stayskal Act was named after Sergeant First Class Richard Stayskal, who experienced alleged medical malpractice while on active duty. Though the final version stopped short of allowing servicemembers to sue the United States in court, it promised to pave the way for servicemembers to file administrative malpractice claims against the Department of Defense (DoD).

The Stayskal Act marked a watershed moment in American military law and policy. It aimed to rectify a particular harm caused by the longstanding Feres Doctrine. The Feres Doctrine has long barred service members from suing the government for injuries deemed incidental to their military service. Unfortunately for servicemembers, that bar on legal action had been construed to include medical malpractice by government health care providers that occurs far from any warzone. Notwithstanding the Feres Doctrine, the Stayskal Act promised to restore servicemembers’ rights to pursue malpractice recovery. So, three years after implementation, is the Act fulfilling its mandate?

Implementation

Upon its enactment, the Stayskal Act was lauded as a major victory. However, the process of implementation has faced bureaucratic challenges.

First, the DoD was required to establish regulations and guidelines governing the claim process. This included developing mechanisms for filing claims, setting up review boards, and stipulating claim limits.

Despite a slow start, the DoD began accepting claims in early 2020. Since then, hundreds of claims have been filed. However, there have been complaints regarding the opacity of the process and the duration taken to resolve claims.

Assessment: Success or Failure?

To evaluate whether the Stayskal Act has been successful, it is essential to consider its primary objectives: to provide redress for servicemembers who have been victims of medical malpractice and hold military medical practitioners accountable.

Providing Redress

Though the Act has succeeded in creating an avenue for servicemembers to file claims, the efficiency and transparency of the claim process have been questioned. There have been mixed reports on the compensation awarded, with many claimants complaining they were offered insufficient amounts or nothing. No right of appeal to any external court for decisions or denials exists.

As of March 2023, the following claims numbers have been reported:

• The Navy has received 155 claims. Four have been approved for payment, 88 have been denied, and 63 are still being processed.
• The Air Force has received 133 claims. Five were approved for payment, and 30 were denied. Nine additional cases were presented to the Defense Health Agency by way of appeal – seven of those were denied, and two are still pending. Id.
• The Army has received 202 claims. Eleven were approved for settlement, and 144 were denied. The remainder are still pending.

And what of Master Sgt. Richard Stayskal’s claim? Despite being the namesake of the bill, Stayskal’s own claim, alleging a delayed diagnosis of lung cancer, was denied by the DoD earlier this year.

Accountability

The Act has had limited success in holding military medical practitioners accountable. The lack of a provision allowing for litigation arguably means that there is still no significant legal deterrent against malpractice. The Act’s implementation does not include mechanisms for ensuring accountability within the military healthcare system itself.

Broader Implications

Additionally, the Act has had unintended consequences. Some experts argue that creating a compensation system within the DoD further entrenches the Feres Doctrine in the medical arena—where many have argued it does not belong—by acknowledging that these cases should not be handled through the courts.

Recommendations

Given the mixed results, several recommendations could enhance the effectiveness of the Stayskal Act:

1. Adequate Resource Allocation:The DoD must ensure sufficient resources are allocated to handle the volume of claims effectively. This includes adequate staffing and funding to promptly manage, investigate, and resolve claims. The claim numbers above demonstrate that there has been no decision at all on 30% of all claims brought under the Act. Justice delayed is justice denied, especially for malpractice victims, whose time may be limited by their injuries.
2. Extend Legal Remedies:To truly provide justice to servicemembers and hold negligent medical practitioners accountable, the Act should be amended to allow service members to pursue claims through the federal court system. The outline for how that would proceed is already established: The Federal Tort Claims Act (“FTCA”). Litigation under the FTCA is precisely the method that a servicemember’s spouse must use, for example, if they experience malpractice from a military-connected doctor. Utilizing the courts will ensure that servicemembers have access to a fair hearing and may serve as a deterrent against malpractice. As noted by Sen. Markwayne Mullin, co-sponsor of the Stayskal Act, “The fox is guarding the hen house” under the current administrative claims system. Sen. Mullin’s overall assessment of the implementation of the Act? “The DoD has repeatedly failed in its basic obligation to protect our servicemembers, and they are liable,” adding, “Our message to the DoD is this: fix the problem, or Congress will fix it for you.” Id.
3. Regular Reviews and Amendments: The DoD and Congress should regularly review the Stayskal Act’s implementation to identify issues and areas for improvement. This should include feedback from servicemembers and their families to ensure the Act is responsive to their needs.

Conclusion

The Stayskal Act was undoubtedly a step in the right direction in seeking justice for servicemembers who have been victims of medical malpractice. However, since its implementation, it has become clear that there are significant areas where the Act falls short. While it has succeeded in providing an avenue for redress, the inefficiency and limited scope of the claims process have hindered its effectiveness. The inability to pursue claims through the courts and lack of mechanisms for internal accountability within the military healthcare system further limit the Act’s impact on deterring malpractice.

Going forward, the DoD and Congress must work collaboratively to address these shortcomings. The Stayskal Act can evolve into a more robust and just piece of legislation through increased efficiency, resource allocation, and the extension of legal remedies. Ultimately, the goal should be to compensate victims and ensure that the brave men and women who serve in the United States military receive the standard of medical care they rightfully deserve.