The Army has rejected a medical malpractice claim filed by the soldier whose name was attached to the legislation allowing such cases.
Master Sgt. Richard Stayskal received word last week that the Army had rejected his $2 million claim after doctors missed a large tumor in his lung, delaying a diagnosis of lung cancer that wasted precious time in his fight against the disease.
According to Stayskal's attorney, Natalie Khawam of the Tampa-based Whistleblower Law Firm, the Army admitted that it had "breached the standard of care" but concluded that the six-month delay in treatment did not affect the outcome.
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Stayskal was diagnosed by a civilian physician and now has stage 4 lung cancer, a terminal illness he battles with medication every day.
"How is that possible?" Khawam said in an interview Tuesday with Military.com. "It's cancer. Obviously, that delay caused the cancer to grow several stages. It's unrelenting."
Following his diagnosis, Stayskal became an advocate for service members to file medical malpractice claims against the government -- a process they have traditionally been denied as a result of a Supreme Court ruling known as the Feres Doctrine, which bars troops from suing the federal government for injury or harm that occurs while they are doing their duty.
In December 2019, a provision named for Stayskal was included in the fiscal 2020 National Defense Authorization Act (NDAA) giving service members or their surviving families the right to file medical malpractice claims for harm or negligence caused by a military physician or civilian contractor when treated at most military health facilities.
The law was primarily aimed at allowing new claims going forward, but was also made retroactive to cover two years before passage. Stayskal filed his medical malpractice claim the first day he was allowed by law, on Jan. 1, 2020.
As of October 2022, the services had received 448 claims seeking more than $4 billion in damages but had approved just 11 -- a 2% approval rate. The individual services, which are responsible for deciding the claims, have rejected more than one-quarter of all claims received.
According to Sen. Markwayne Mullin, R-Okla., the Army itself has received 155 claims to date and rejected 140 of them.
Service members who are denied their claims can appeal but, according to attorneys working on the cases, the reviews simply investigate whether the claims-handling process was done correctly. It is not a review of the medical decision, allows no input from service members' attorneys, and does not let them provide additional information to support their claim.
Military.com requested updated data from the services, but it was not provided by publication.
Khawam said Stayskal will appeal but added they also are meeting with lawmakers to shore up the law so that troops have a better chance of having their claims approved or have more opportunity for approval in the appeals process.
Mullin, who worked on the Stayskal case when he served in the House of Representatives, pledged Wednesday to fight to ensure that service members see better outcomes for their cases. He said lawmakers may add language into the NDAA to clarify the appeals process or require the services to backcheck one another's decisions.
"The fox is guarding the henhouse, and things have to be changed," Mullin said during a press conference Wednesday in Washington, D.C. "These are the individuals who said they care about the soldiers as much as we do, but what they are doing is egregious. We need to hold them accountable."
Rep. Mike Waltz, R-Fla., agreed, saying, "We changed the law; now, we are going to force [the Defense Department] to enforce the law."
For any proposal to become law, it would likely end up as an amendment to the fiscal 2024 NDAA, following the same path as the original legislative proposal.
At the Washington press conference, Stayskal said the Army offered him a small payment, but he feels deeply betrayed by the service he has given his life to.
"I see this as nothing short of deception at play. I stand here on behalf of [an] entire generation and on behalf of future generations to ensure that what happened to me will never happen again. I will give every breath I have for them," said an audibly winded Stayskal. "I'd like to see a military that really means what it says."
-- Patricia Kime can be reached at Patricia.Kime@Military.com.
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