A Green Beret says the military failed to detect his cancer. Now he seeks to hold the government accountable.

Sgt. 1st Class Rich Stayskal, an Army Green Beret suffering from terminal lung cancer, arrives on Capitol Hill in Washington with his wife Meg on Wednesday, Dec. 13, 2018. Stayskal says doctors at Fort Bragg missed the tumor on his lung evident in a scan six months earlier. He is now fighting to change the Feres Doctrine which bars him and other active duty servicemembers from suing the government even for medical malpractice.

WASHINGTON — If there’s one skill that’s kept Sgt. 1st Class Rich Stayskal going for more than a decade in Special Forces it’s his ability to keep his eyes on the end game.

It helped the former Marine recover from a gunshot wound to his lung while fighting in Iraq and go on to become a Green Beret two years later. And it helps explain how this 37-year-old father of two with terminal stage IV metastatic lung cancer that has spread to his spine, neck, pelvis, lymph nodes, liver, spleen and hip is willing to forgo much-needed rest and precious time with his daughters to lobby Congress for change.

Had his military doctors diagnosed him properly, Stayskal believes he would be cancer-free today. Instead, he says, they failed to flag his cancer when it appeared visibly on a scan in January 2017, and again failed to inform him about it four months later when he was passing out and coughing up blood. He was so sick that his commanding officer at Fort Bragg walked across base with him to Womack Army Medical Center to demand a waiver so Stayskal could get a faster appointment with a civilian pulmonologist. By the time he got seen in June, the cancer had spread.

Now, it could very well kill him.

But Stayskal doesn’t dwell on that. He also isn’t focused on trying to make a case for trial because he knows it almost certainly wouldn’t be heard. An obscure but entrenched rule known as the Feres doctrine prohibits military servicemembers from suing the government for anything — even medical malpractice. To make things right, Stayskal instead spends his time between bouts of chemotherapy challenging the Feres doctrine — so that the next servicemember doesn’t end up in his shoes.

He and his wife, Meg, leave the kids home in North Carolina and fly up to Washington every few weeks or months to meet with lawmakers.

“I will deal with the cancer when I have to,” he told aides to Rep. Ted Lieu, D-Calif., during a trip to Capitol Hill in December. “But I am using this time to fight for justice.”

After he was diagnosed, the Stayskals say they sought in vain to get answers from Womack about how this could happen, what kind of investigation was done or if anyone was disciplined for these medical failures that left him terminally ill.

A Womack spokesman declined to comment on the Stayskal case but said the hospital is committed to quality care.

The Stayskals found attorney Natalie Khawam, of the Whistleblower Law Firm in Tampa, Fla., and they learned that there were only two ways to change Feres: an act of Congress or a ruling by the Supreme Court.

Khawam started crafting arguments she hopes to present before the Supreme Court. At the same time, they began canvassing Congress — telling his story one meeting at a time — and gathering nearly 90,000 signatures on a Change.Org petition urging lawmakers to amend the doctrine.

“Why should soldiers be denied recourse just because they are on active duty if they are injured or killed while getting ordinary (noncombat-related) medical care?” the petition asks.

The Department of Defense says there are quality assurance safeguards in place to prevent bad medicine and that Feres serves an important purpose. The rule, which has been upheld for more than 68 years, was meant to maintain a “no-fault” compensation system in the military where combat-related deaths and injuries are possible.

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Stayskal believes that Feres has become a shield that protects doctors practicing poorly on soldiers in U.S. hospitals far away from the battlefield.

He’s not the only one. Another Feres petition filed by Walt Daniel, whose wife, Navy Lt. Rebekah Daniel, died in childbirth at Naval Hospital Bremerton in 2014, is currently before the Supreme Court. If heard, it will be the first time the Supreme Court considers Feres in more than 30 years.

“This fight is not just for our family but for countless future military servicemembers and their families,” Daniel said.

The Stayskals didn’t initially recognize the magnitude of their effort and how much time it would consume away from the girls.

“It sets a good example for our kids that it’s worth it to fight for things to be fixed, no matter how hard the fight is,” Stayskal said.

They’ve come to realize that he’s fighting a battle for a future that’s bigger than him — one he might not live to see.

The doctrine

In 1950, four years after Congress enacted the Federal Tort Claims Act allowing for citizens to sue the government for damaging acts of negligence, the Supreme Court issued a ruling in Feres vs. the United States — combining three cases of harmed servicemembers — that determined that the tort claims act was not applicable for military members “in the course of activity incident to service.”

The law made sense in the context of a nation coming off World War II that involved a mandatory draft and unsophisticated battlefield medicine.

Since then, the court has interpreted the Feres Doctrine to mean that no active-duty servicemember may sue the federal government regardless of the circumstances.

The Supreme Court has over time given three rationales to support the doctrine:

The distinct relationship between the government and the armed forces requires a uniform system of compensation for servicemembers.

Servicemembers receive a broad scope of benefits and enjoy no-fault compensation that offsets any need for tort.

Allowing servicemembers lawsuits against the military could undermine military command order and discipline.

Over the years, courts have upheld the Feres ruling, dismissing attempted lawsuits. The last time the Supreme Court took it up was in 1987 in the United States vs. Johnson, upholding the ruling 5 justices to 4. In a scathing dissent, Justice Antonin Scalia wrote, “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

The Supreme Court has declined subsequent petitions to reconsider Feres, and many attorneys are wary of taking cases like Stayskal’s because they are often dismissed before the merits can even be discussed.

The cases are considered unwinnable, said Khawam, Stayskal’s attorney. “Lawyers say, ‘Don’t touch this case. You will lose your shirt.’ I didn’t go to Georgetown Law to take easy cases. I went to change policy and make things better.”

A Defense Department spokeswoman, when asked about the cases, declined comment on specifics but said the merits of Feres were sound and there were protections in place to safeguard patients.

“The military health system has a comprehensive program of quality assurance which applies equally to all cases of compensation resulting from inadequate medical care,” Lt. Col. Carla Gleason said in a statement. “The system provides for peer review, including peer review external to DOD, to determine whether the standard of care was met and accountability for cases in which it was not. This includes reporting to the National Practitioner Data Bank, where information is available to licensing bodies and future employers.”

If Feres were reversed and members were allowed to sue, it “would likely bring defensive medicine practices into the military health care system,” she said. Additionally, it would diminish the value of combat injuries or deaths because those cases would be barred from suing while others would be allowed to sue. “Such an inequity toward members injured or killed in military operations could not be sustained,” Gleason stated.

A ripe ruling

Still, Khawam and others believe the ruling is ripe for overturning with more conservative Supreme Court justices ascribing to Scalia’s thinking. Their conversations with lawmakers suggest they have broad political support.

After a meeting in November, Rep. Jackie Speier, D-Calif., who is expected to become chairwoman of the House Armed Services subcommittee on military personnel, told Stayskal she would bring the issue up as one of its first hearings.

After meeting with aides, Stayskal is slated to meet later this month with Sen. Jim Inhofe, R-Okla., who chairs the Senate Armed Services Committee. He hopes the meeting indicates Inhofe’s support for introducing a Senate bill.

Daniel’s Supreme Court petition was filed in October after the 9th U.S. Circuit Court of Appeals upheld a district court dismissal of the case. Still, his attorney, Andrew Hoyal, of the Luvera Law Firm in Seattle, was buoyed by the 9th Circuit’s opinion that all but called for a Supreme Court review.

“As we have done many times before, we regretfully reach the conclusion that [Daniel’s] claims are barred by the Feres doctrine and, therefore, affirm” the dismissal of the case, wrote Judge Michael Daly Hawkins. “Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death. If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.”

In December, the justices asked for a government response to the Daniel petition, raising hope that they are considering taking the case.

Rebekah Daniel

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It’s been five years since Rebekah Daniel bled to death after childbirth, and Walt Daniel says he’s no closer to getting any answers on how it happened.

His wife, known as Moani, had been a vibrant, healthy 33-year-old, a third-generation servicemember who worked as a labor and delivery nurse in Naval Hospital Bremerton where she died. Daniel recalled that she gave birth to their baby girl, Victoria, held her for maybe 20 seconds and then suddenly there was a scramble. Hospital staff said they needed to work on her. Less than four hours later, he was told she didn’t make it.

He sought information from officials at the hospital, then from Navy leadership. A former Coast Guard lieutenant commander, Daniel says he knew how loss-of-life investigations should work. There should be a timeline, a team brought in to do analysis, an assessment of lessons learned.

But he didn’t get answers. Instead, Daniel says he saw “a simple lack of compassion.”

Working with Hoyal, he filed a wrongful death suit knowing it would be dismissed, along with the appeals that followed.

“I realized the only way to get any answers would be a lawyer,” he said. “I knew it would be an uphill battle, but a battle worth fighting. Feres is an outdated and cookie-cutter answer for our rights as military members.”

In the Supreme Court petition, Hoyal argues that Rebekah Daniel was not engaged in her military duties at the time of her death or while she was being treated at Bremerton. “She died because military doctors failed to follow basic standards of care for postpartum bleeding applicable to any health care provider, military or civilian, in treating mothers following childbirth.”

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Had a civilian family member died in exactly the same circumstances in the next room, that family could have brought a wrongful death claim, he said. “But because Rebekah Daniel wore the bars of a Navy lieutenant and served her country, her family is denied this right.”

Her medical treatment had no relevance to her military service, so it should be held to the same standards as civilian medicine, he argues.

Hoyal called Feres “one of the most criticized doctrines in U.S. history.”

“It’s unjust,” he said. “It shields the government from having to answer for what happened.”

In the autopsy results Daniel obtained, doctors attributed Moani’s death to a very rare blood disorder. But Hoyal said that conclusion was “speculation” and without access to full records, and the ability to interview doctors and nurses involved, there is no way to ascertain what really happened.

Daniel raised Victoria for five years alone and recently remarried. Still, he feels like he can’t fully move on until his questions are answered.

“Finding answers is a huge part of healing — and an important tool for accountability and hospital safety — but that information is not available to us simply because Moani made the decision to serve her country,” Daniel said. “I feel like this is a fight for military members throughout the world — and also honoring the memory of my wife.”

The national discussion

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Rich Stayskal tends to forget the brutal details of his illness, but his wife, Meg, is a walking encyclopedia.

He’d been sick for months when he finally got to see the pulmonologist. He’d blacked out, Meg recalled, and they had to crack his chest just to get him breathing again during one emergency room visit. He was coughing up enough blood that he would wake up choking and feeling like he was drowning. Still, the doctors said its probably just walking pneumonia.

When a pulmonologist finally did a biopsy, the diagnosis was clear. Stayskal was still under the effects of anesthesia. Meg couldn’t bear to tell him, so she asked the doctor to do it.

“I remember they told me and I said, ‘OK, well, let’s get rid of this,’ ” Stayskal said. “I was sad. I yelled. We cried, fought for a little bit. And then I was like ‘OK, let’s figure it out.’ ”

There are moments when the illness does catch up with him. When Meg describes a particularly painful procedure to biopsy a mass in his spleen and plant markers in the tumor, he bounces his leg and stares into space.

But mostly, he’s focused on trying to get his voice heard, and his fight is gaining momentum. The national nonprofit Iraq and Afghanistan Veterans of America supports Stayskal’s effort, sending a representative to some of his meetings with lawmakers.

“You never want to see a situation where a veteran feels they are being treated like they are disposable,” said IAVA CEO Paul Rieckhoff. “It’s really about the larger issue of how we respect and care for the people we ask to serve.”

Stayskal could have just “rolled over and stayed home,” Rieckhoff said. Instead, he’s telling his story over and over, which is painful.

“Rich is, I think, being extremely courageous,” he said. “He’s serving again. He’s volunteering his own personal story. He’s doing it at great physical and emotional, financial expense.”

Khawam eventually hopes Stayskal’s case reaches the Supreme Court, where she wants to argue that barring servicemembers and their families from suing over medical malpractice is unconstitutional and discriminatory.

A convicted prisoner can sue for malpractice but a servicemember cannot, she argues. She notes that the only doctors in the U.S. not required to maintain malpractice insurance are military doctors and civilian doctors working for the military.

“Where is the accountability?” Khawam asked. “Malpractice suits weed out the bad guys.”

She knows that the Supreme Court route is a long shot. But she’s since taken on other Feres malpractice cases and she’s working the legislative angle at the same time. She’s also planning a march in April in Washington to raise more awareness and pressure.

“We need to keep our soldiers alive and safe,” she told Lieu’s aides during their meeting. “Let the same laws that apply to us apply to them.”

cahn.dianna@stripes.com

Twitter: @DiannaCahn



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