The Issue of Medical Malpractice in the Military, Pt. 1
By: Bell Law Firm
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The Issue of Medical Malpractice in the Military, Pt. 1
“Face the Jury” is a podcast dedicated to all issues involving medical malpractice – what it is, how to spot it and how to prevent it while protecting yourself and your family.
Until recently, United States military members were barred from suing the government for negligence due to the Feres Doctrine. This means if any of our service members were harmed by medical negligence, they had no recourse for justice. That all changed when lawyer Natalie Khawam took on the case of Army Sergeant First Class Richard Stayskal. By lobbying Congress and advocating on behalf of Sgt. Stayskal, she received bipartisan support to pass the Stayskal Military Medical Accountability Act. This all unfolded in Charlotte, North Carolina, and was detailed by reporter Matt Grant, who followed the story closely and helped the public become aware of this important issue. I’m pleased to welcome both as guests on the podcast today.
Lloyd: Natalie, can you please tell us more about yourself and how you got on this journey with Sergeant First Class Stayskal?
Natalie: I’ve always had a lot of friends in the military and was always highly grateful for the sacrifices they made to protect our country. When it came to deciding where to spend my pro-bono time, many of my colleagues had put their time into defending criminals, but I just felt like there was this lack of representation for our military and our veterans. A few years ago, I took on a difficult case on behalf of a Marine. Everyone told me we would lose, but after a long appeal process, we won. When Richard Stayskal’s matter happened, his mom found me from that initial Marine case and contacted me.
Lloyd: Tell us how you decided how to take on another difficult case.
Natalie: I received an email from Richard Stayskal’s mom and immediately contacted one of the employees at my firm to set up a meeting. I spoke with his mom and was just dumbfounded about the facts of the case. January 2017, Richard Stayskal went to the doctor for his annual checkup to be cleared for diving school, because he’s special forces. They did an initial CT scan and said everything was good and cleared him for diving school. However, there was a mass in his lung, but they didn’t tell him that. A few months later, he was coughing up blood and saying he felt like he was drowning when he was sleeping. That’s when he knew something was seriously wrong.
Lloyd: They missed the diagnosis, so he didn’t know he has cancer and time is just ticking by.
Natalie: Right. He returned for a second appointment for another CT scan. They told him he was fine and that he had walking pneumonia. If you look at his scans from the first time he was misdiagnosed, there is a clear mass that could have been removed because it wasn’t attached to anything in the lung. The second CT scan revealed that the mass had since attached itself to the lung. Several months later, everything went further downhill. He went to the hospital and his scans lit up like a Christmas tree – with a stage 4 cancer diagnosis.
When I received their phone call, I wondered why they had called me. This was a slam-dunk medical malpractice case, and I’m not a medical lawyer by trade. I soon learned nobody would take this case because of the Feres Doctrine.
Lloyd: So, you evaluated the case, and based on the facts of the case, determined there was a clear case of medical malpractice. You have doctors who misinterpreted the imaging, delayed the diagnosis, and this delay caused cancer to spread and grow and result in a terminal diagnosis. Normally, there’s an option for the family in that situation to prosecute a case. But there is an exception: you cannot do that in the military because of the Feres Doctrine. What is that and why did it prevent Sgt. Stayskal from pursuing a medical malpractice case?
Natalie: The Feres Doctrine is a 1950’s law. During wartime, in battle, things will happen that aren’t anticipated. When a doctor is on the battlefield taking care of a soldier, they might not have all the resources they need, so medical malpractice could in theory happen. Feres is in place so you can’t sue for medical malpractice during a wartime emergency.
Lloyd: Why did that prevent Sgt. Stayskal from recovering damages? His malpractice didn’t happen on a battlefield.
Natalie: Conveniently, the Department of Defense decided anytime someone is on active duty, they can’t sue. They applied the Feres Doctrine on matters like Richard Stayskal’s where it does take place during battle. Richard’s misdiagnosis occurred during an annual, routine physical checkup where the doctor was a civilian doctor. But the DoD essentially said he’s barred by Feres. I looked at the case law and history of Congress and one of the Supreme Court decisions called the Feres Doctrine an injustice for the military but said if Congress wants to fix this and clarify the law, they could do that. Several people tried to change the Feres Doctrine to have it clarified and more narrowly interpreted over the years and have lost. I decided to try for myself.
Lloyd: So, if you can’t argue the law – you change the law. At least in this case.
Natalie: The first colleague I reached out to told me it would either take an act of Congress or an act of God to change this law. I said we’ll see about that.
Lloyd: I want to bring Matt into the conversation. Matt is a reporter in North Carolina, which is where Fort Bragg is located. I understand Sgt. Stayskal was stationed there, living there with his family. Matt, tell us about your background and how this case got on your radar.
Matt: Natalie is very passionate about this issue, and I cannot overstate what an amazing accomplishment she and Richard achieved in getting this law passed. It’s unbelievable. I’ve been investigative reporting since 2005, and in the last 15 years I’ve reported on cases lawmakers have taken an interest in. When we did this story, there was not only a bill but there was also a law that was signed a little over a year later. I had never seen that happen and will probably never see it happen again. It’s amazing. The fact she was able to bring the most conservative Republicans and most liberal Democrats together on this issue speaks to the respect I think everyone has for our military and that they have for Richard – a Purple Heart recipient and war hero who did not deserve the treatment he got. It’s so tragic and heartbreaking what happened to him and his family. Covering Richard’s story and accomplishments is the highlight of my career.
Lloyd: I imagine being in North Caroline in the military community, there would be a lot of interest in this case. Can you talk more about how you got the case on your radar and why you decided to cover the issue?
Matt: I was looking for story ideas and remembered meeting Natalie at a conference. I called her law firm because I remember she specialized in whistleblower cases, which I’m interested in. I asked if she had anything that intersects with North Carolina. We got to talking and it just happened she was in the middle of Richard’s case. As soon as she told me what happened to Richard, I knew it was a big story. I flew down to Florida, met Richard, his wife, and Natalie in her Tampa office and interviewed him right on the spot.
Lloyd: Tell us about that moment you met him, what stayed with you and impressed you about that meeting?
Matt: Several things impressed me about Richard. He’s very humble, and he doesn’t like talking about himself. For him, he was doing a mission he was assigned to do. He looks great. You look at him, and he’s fit and looks healthy, and you’d never know he has stage 4 cancer just eating away at him and that his time is limited. He was on a mission. This was a mission for him to get the law changed, and he was going to do whatever it took. I’m sure it wasn’t easy to sit down and tell the story of botched medical care, and for his wife to do it as well with lights and a camera.
What stuck out to me from that interview and still hits me was this moment he got choked up saying he feels good and feels healthy and some days he pretends he doesn’t have cancer, and that’s how he goes about his days. Just saying that chokes you up. It was a really powerful moment that we kept in our first story. Richard is just an incredible guy; he’s a hero and he views what he’s doing now as his mission. The fact that the Department of Defense has delayed implementing this law for over a year after it was signed, I know that must be frustrating to him and his family. I know whereas Richard should be devoting all this time to his two daughters and his wife, he’s being dragged back into this fight to help his fellow service members.
Lloyd: He’s got a great champion in Natalie, who has proven her determination and ability. It’s one thing to have the passion and work ethic, but another to also have the mental power and intelligence to navigate all types of personalities in Congress. Natalie, I’d like you to talk to us about the experience of going into these various Senators’ offices. What was that like?
Natalie: I’m a big believer in “know your audience.” When I knew who I was presenting to, I would study how many constituents they had that were on active duty to help personalize the issue. I had to do my research and freshen up on understanding their views and how and why I could bring them onto our team. I was determined to be an advocate for us, and that’s when I knew we had a chance.
There’s so much to unpack with Matt Grant and Natalie Khawam. Stay tuned for Pt. 2 of our interview as we continue our conversation on medical malpractice in the military.