A 69-year-old policy keeps troops from suing the US for medical malpractice. It's closer to being overturned than ever before

Sailors from Naval Medical Center San Diego (NMCSD), currently assigned to USNS Mercy (T-AH 19) works on a mock patient during a mass casualty drill for Mercy Exercise (MERCEX) in December 2018. (U.S. Navy/Cameron Pinske)

Editor's Note: This article by Patricia Kime originally appeared onMilitary.com, a leading source of news for the military and veteran community.

In March 2014, at Naval Hospital Bremerton, Washington, Navy Lt. Rebekah "Moani" Daniel was admitted to have her first child. A labor and delivery nurse who worked at the facility, she was surrounded by friends and co-workers when daughter Victoria entered the world.

But four hours later, the 33-year-old was dead, having lost more than a third of her body's volume of blood to post-partum hemorrhaging. Her husband's attorney argues that the doctors failed to deploy treatments in time to halt the bleeding, leading to her death.

Her baby, now 5, never felt her mom's embrace.

This Friday, the U.S. Supreme Court will decide whether to hear a petition from Moani Daniel's husband, Walter Daniel, in his case against the Navy hospital where his wife died. Like every other service member, Daniel was required to get medical care from the U.S. military, but her family is prohibited from suing for medical malpractice, barred by a 69-year-old legal ruling known as Feres that precludes troops from suing the federal government for injuries deemed incidental to military service.

"Suppose you had two sisters. One was on active duty and the other was a military dependent. Both of them give birth in adjoining rooms at the same military hospital . Both are victims of malpractice. One can sue and the other one can't. How can that make sense?" asked attorney Eugene Fidell, a former Coast Guard judge advocate general and military law expert who lectures at Yale Law School.

While the issue has come back before the Supreme Court in previous years, it could now have a stronger chance of being taken up by the justices, a first step in what Walter Daniel and others hope will be a major policy overturn.

When Walter Daniel's case is distributed to the justices for conference, it will be the first Feres case before the court since 2016, when an Air Force captain settled with the federal government for an undisclosed amount in another malpractice case involving childbirth.

Distribution of a case for conference means the justices may discuss it among the hundreds of petitions to be considered and will decide whether to hear oral arguments from the parties involved.

The U.S. Supreme Court takes between 70 to 80 cases a year.

Unlike many previous Feres cases, the court in the Daniel case ordered the U.S. government to file a response, an indication that at least one of the nine justices is interested the in case, explained Andrew Hoyal, Daniel's attorney.

Meanwhile, another veteran is also working to end Feres.

In March 2017, Army Sgt. First Class Richard Stayskal was training at the Army's Special Forces Underwater Operations School in Key West, Fla., when he noticed something amiss: In top shape, the Green Beret was having trouble with his health, unable to catch his breath.

Once Stayskal arrived home at Fort Bragg, North Carolina, the symptoms continued, including wheezing, numbness and blurry vision. To find the cause, he went to several doctors, including one in the emergency room at Womack Army Medical Center, where he'd undergone his pre-dive training physical four months before.

Sent home repeatedly with diagnoses of asthma and pneumonia, Stayskal began coughing blood. On June 22, when he went to a civilian pulmonologist for answers, the doctor found a large tumor in his lungs. Stayskal later learned it was lung cancer -- and apparently, the suspicious nodule was clearly visible in his January pre-dive CT scan, a nearly 3-centimeter node that should have prompted follow-up care and more tests. Military doctors also had noticed it in May and recommended follow-up, but never told Stayskal.

Instead, the Army Green Beret and former Marine is dying of Stage IV lung cancer, the disease having spread to his spleen, liver, spine, hip joints and lymph nodes. His attorney says if he'd received proper care in January, he may have had a chance at defeating the deadly non-small cell adenocarcinoma.

If the Supreme Court justices decline to accept the Daniel case, Stayskal's attorney, Natalie Khawam of Whistleblower Law Firm in Tampa, has set the wheels in motion in Congress to change the law that many say is patently unfair.

"I could not imagine if this happened to my son. So, I took it on, saying that I'm just going to focus on fixing and changing this law, even if that's the last thing I do in law," Khawam said.

The history of Feres

The Feres ruling stems from three separate court cases decided by the U.S. Supreme Court in 1950 over the Federal Tort Claims Act, the law that permits citizens sue the government for wrongdoings by federal employees or agencies.

The widow of Lt. Rudolph Feres sued the Army for negligence after her husband died in a barracks fire caused by a faulty heater. The other two cases involved medical malpractice, including one in which a soldier sued the Army after learning that a 30- by 18-inch towel, with the words "Medical Department U.S. Army" on it, had been left in his abdomen during a surgery.

The Supreme Court ruled the government is not liable for injuries sustained on active duty or resulting from the negligence of other military personnel. The justices added that the ruling was needed to ensure that Congress was not "burdened with private bills on behalf of military and naval personnel."

In his case, Walter Daniel argues that the military health system has changed substantially since the initial Feres ruling, and the development and expansion of the non-combat military health care mission -- including treating dependents and hiring thousands of civilian health care providers -- makes the ruling "unjustifiable."

"The only difference in the two groups is that a member of one group has a uniform hanging in the hospital room while the other does not," Daniel's petition to the Supreme Court reads.

"Every person in the United States of America, even illegals, even inmates, can sue for malpractice insurance. The only people in the U.S. who can't sue for malpractice insurance are our soldiers. This is discrimination against a certain class of people -- the military," Khawam, Stayskal's attorney, said.

In the government's response to Walter Daniel's petition, the U.S. Solicitor General said that Feres has stood for more than 60 years and, shortly after the Federal Tort Claims Act was adopted, the ruling was decided, and it included the prohibition of medical malpractice claims.

Citing numerous cases, including a 1987 decision that involved medical treatment of an active- duty service woman who was pregnant, Solicitor General Noel Francisco argued that the petition should be denied.

He said the military has an established system for compensating malpractice victims and said the limits on malpractice help pay for health care for military dependents and retirees, and "abandoning Feres ... would upset the assumptions" on which Congress based the expansion of health care to those groups.

"Service members are entitled to generous, no-fault statutory benefits for injuries sustained as a result of medical services provided by the military," Francisco wrote.

When a person dies on active duty, their beneficiary receives a lump-sum payment of $100,000 if the service member dies during hazardous duty or while training for combat, and $12,420 for all other deaths. They receive a Service Member's Group Life Insurance policy payout of $400,000, unless the service member requested in writing a lesser amount, and also are awarded unpaid pay and allowances. Surviving spouses also are entitled to a monthly annuity as well as dependency and indemnity compensation and education benefits. Children also are eligible for benefits, to include Social Security and scholarships.

"Because Lt. Daniel was on active duty at the time of her death, her heirs received (and continue to receive) numerous statutory benefits as a result of her death," Francisco wrote.

Advocates for military personnel suggest that the compensation package is not enough. Fidell said that while Feres should continue to be applied to battlefield malpractice, it should not be used to protect individuals, including military doctors and civilians employed by the Defense Department, from professional malpractice.

"Congress has not made provision for the kinds of damages that our society expects, particularly in medical malpractice ," Fidell said. "The compensation is robust, but it doesn't include the kinds of things Americans are used to in tort law -- pain and suffering."

Sentinel events

In 2017, the military health system experienced 112 "sentinel events" across 78 medical facilities, according to the Defense Health Agency. A sentinel event is an unexpected occurrence involving serious injury or death as defined by the Joint Commission, a not-for-profit group that accredits U.S. hospitals.

The data appears not to be comprehensive, however: according to the 2017 figures, Womack Army Medical Center experienced zero "delays in treatment: Lab, pathology, radiology, referral."

Stayskal's case apparently didn't count.

Between 2016 to 2018, 196 administrative claims for malpractice were filed against the Air Force. The service did not say how many resulted in medical malpractice suits or settlements. During the same timeframe, the Navy had at least 48 cases of malpractice settled. (The exact number is not known because the Navy declined, for privacy reasons, to detail cases at facilities that had three or fewer claims filed against them). The Navy did not provide the total number of administrative claims filed.

The Army, which provided the information on request in 2016, referred a 2019 query for the same information to its Freedom of Information Act offices. Military.com has not yet received a response.

Hoyal, Daniel's attorney, remains hopeful the Supreme Court will hear the case. Before becoming justices, both Clarence Thomas and Ruth Bader Ginsburg expressed interest in reviewing Feres. Plus, there are several new additions to the court -- Justices Neil Gorsuch and Brett Kavanaugh -- who weren't present the last time a Feres case was petitioned and may have an interest in the legality of Feres for medical malpractice.

"Our petition presents the U.S. Supreme Court with legal and factual arguments not previously made or considered in prior cases challenging the Feres doctrine," said Hoyal, who practices law with Luvera Law Firm in Seattle. "In our view, the government's response simply fails to come to grips with these arguments."

But, Fidell explained, the request for the solicitor general to respond simply means one or more justices wanted to see the government's position "spelled out," Fidell said.

"That's all you can really infer from it. Is it better than nothing? Yes. Is it much better than nothing? We won't know until the orders list comes out," he said.

Seeking help from Congress

Khawam, on the other hand, is tackling Feres from the legislative side. She has spent months walking the halls of Congress with Stayskal to meet lawmakers and push for a bill, either a single piece of legislation or one that will be included into the fiscal 2020 defense authorization bill.

Her and Stayskal's goal is to ensure that military patients have the right to sue, and that doctors in the military health system -- who are both uniformed and civilian employees -- can be held accountable for egregious mistakes.

Besides drafting bill proposals and making the rounds on Capitol Hill, Stayskal and Khawam are planning a march June 12 in Washington, D.C. to call attention to the Feres doctrine and what Khawam calls its' unfairness.

She said she is lining up celebrities and lawmakers to speak and has galvanized bipartisan support to change the law. If successful, she and Stayskal would achieve what many have not been able to -- people like the families of Air Force Staff Sgt. Dean Witt, who died in 2003 from complications of irreversible brain damage during a routine appendectomy; of Army Maj. Chad Wriglesworth, who died when his melanoma was diagnosed as an ingrown toenail; and of Air Force Capt. Heather Ortiz, whose baby suffered injuries during childbirth as the result of Ortiz receiving the wrong medication.

Stayskal isn't the first service member to convince lawmakers to introduce a bill overturning Feres in cases of medical malpractice. But Khawam says her client's story simply can't be ignored.

"He is a superstar and it's not from being a celebrity ... it's from being such a great guy, from his work to just being a good kid," she said. "It speaks volumes when people you know from grade school are calling your lawyer and saying 'I want to help.'"

Stayskal is on palliative care, meaning he is receiving treatment to keep him comfortable, but no longer fighting the cancer. While he has been in and out of hospitals, he remains strong and is trying to see every congressional representative and senator who will meet with him.

"People tell me that [Feres] is the law, but you know what? Separate-but-equal was the law and people had to ride in the back of buses. Gay people couldn't get married - that was the law. Here's the thing: the law changes, and it only gets fixed when it's brought to the attention of everyone else," Khawam said.

This article originally appeared on Military.com

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