The Issue of Medical Malpractice in the Military, Pt. 2
By: Bell Law Firm
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The Issue of Medical Malpractice in the Military, Pt. 2
“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.
In our last episode, lawyer Natalie Khawam and journalist Matt Grant joined us to discuss the Feres Doctrine, a long-standing law in the United States that prevented military members from pursuing medical malpractice cases. Natalie began sharing her story of how she took on the Feres Doctrine, flew up to Washington D.C., and personally lobbied members of Congress to change the law. She accomplished something that few people have done, which is to bring about change with bipartisan support. Today, we continue our conversation about medical malpractice in the military.
Natalie: I remember thinking if I don’t help Sgt. Richard Stayskal, who will? Is it the easy thing to do? No, but sometimes the right thing to do isn’t the easy thing to do. I stopped taking new cases, I refinanced my car to be able to continue working this case, and I just put everything on the line. I was never fearful of going up against the Department of Defense. It was just a matter of getting this case resolved in time for Richard to see it conclude with a successful outcome.
Lloyd: Well, and you’re not in a familiar environment. A courtroom is familiar to you; dealing with administrative hearings and dealing with government bureaucracy. You hadn’t been to Congress before, and you had never been a lobbyist. It took a lot of courage. I’ve been following your career and work from afar and have great admiration for what you’re doing. One of the reasons I was excited to speak with you is because the work you’re doing is very personal work for me and my family.
My brother Nolan Bell was a service member who served two tours in Iraq and a tour in Afghanistan. He came home after his last tour with a persistent cough that he couldn’t shake. He kept going to the VA Hospital and they kept telling him it was lung irritation and possible allergies. They kept pushing him off. My father is a doctor and recommended Nolan insist on a CT scan while at the VA. They finally scheduled it about 6-8 months out, and by the time they completed it, the scan lit up like a Christmas tree. He had Stage 4 lung cancer and was immediately given a terminal diagnosis. He passed away 7 months after that diagnosis.
These are real people affected by medical errors, whether military or civilian. You have been successful in kicking over a big wall that has prevented military members impacted by malpractice from having any hope of recovery or justice. I applaud and thank you for your hard work and dedication. I thank you too, Matt, for covering these stories and bringing them to light and raising awareness.
Natalie: Thank you, and I’m sorry for what happened to your brother and family. You see a lot of doctors go to the DoD and VA because they aren’t required to carry malpractice insurance. Before the Stayskal bill, you didn’t need it. What exactly does that mean? Whenever somebody commits malpractice, they get kicked out of the hospital first, and then the insurance carrier will no longer cover them, so they’re considered uninsurable. When someone’s uninsurable, they can’t practice medicine in any private hospital.
Lloyd: The bottom line is patients – including service members – have a right to expect the standard of care. If a doctor or clinician falls below the standard of care and is negligent, he or she can lose their malpractice coverage. One thing I’ve noticed is the ones who repeatedly commit malpractice and are held accountable lose their coverage, but they don’t just stop practicing. Rather, they move to a state that has so-called tort reform in place that protects doctors and hurts patients. One place a lot of doctors end up is Texas because it has some of the most patient-unfriendly laws where patients essentially don’t have a right to a meaningful recovery when it comes to malpractice. When doctors know they can’t be held accountable, do you think they’ll practice with the same level of diligence? Probably not.
Natalie: I think if the public knew more about the Feres Doctrine from the onset, they would understand why it was so important to change the law. Changing the law wasn’t just about giving our military a right to sue, it was about creating accountability and deterrence from somebody continuing to act negligently towards our soldiers. This is what would have continued to happen if we didn’t change it.
Lloyd: Natalie, earlier I was sympathetic with you and thinking “poor Natalie, how could she stand up to all these Congresspeople.” And now I’m thinking, “poor Congresspeople, how could they stand up to Natalie.”
Matt: They didn’t know what hit them.
Lloyd: Matt, I want to ask you what feedback you received from your audience in North Carolina when you raised these issues and covered these stories? North Carolina is one state with severe laws in place that restrict patient access to the courts in malpractice cases. Talk to me about the reaction you got when you became a spokesperson for a person trying to expand the ability to file a malpractice action.
Matt: When we covered Richard’s story, the next day I was calling every lawmaker in North and South Carolina trying to get a response. Congressman Richard Hudson responded right away and said he would investigate changing the law. He partnered with Congresswoman Jackie Speier of California, and they put something together. Before you know it, Richard is on Capitol Hill testifying.
I received a lot of feedback, both from service members and from members of the public who just had no idea about the Feres Doctrine. They had no clue that an inmate could sue, but that an active-duty service member couldn’t. Our viewers were emailing me asking how it’s possible, and what they could do. We also had a lot of viewers requesting more information about Feres so they could reach out to their Congress members to request a change to the law.
After the law was passed, families of service members repeatedly thanked me and requested that I thank Natalie and Richard as well. For many of the families that have lost a loved one to botched or negligent care, or for service members who suffered terribly, it’s not about the money at all. It’s about accountability and justice. Like you guys were talking about before – this provides a measure of justice and holds negligent doctors accountable for the mistakes they’re making that can ruin lives or in some cases lead to death.
I can also give you another example. Service member Joran Way went in for routine shoulder surgery, woke up in terrible pain, and the doctor prescribed 82 pills of oxycodone over 4 days. Jordan died of opioid toxicity. He took the medication that his doctor prescribed him as prescribed, and he died. This law gives Jordan’s family a measure of justice because they were previously kept in the dark about the results of the internal investigation into the doctor. They didn’t know what happened. Under this law, they were the second family I believe to file a claim against the government. To them, that’s at least some measure of justice for their son.
Lloyd: Thanks, Matt. I now want to pivot a bit. To date (March 2021), I understand not a single claim has been processed by the DoD. For Sgt. Stayskal and hundreds of other service members, their claims are sitting somewhere without any visible movement. Natalie, can you tell us what the problem is and what can be done to move the ball forward?
Natalie: We got the bill passed, the president signed it into law, and now we’re waiting for the DoD to issue these rules because without them they cannot pay or process these claims. There were a lot of delays between COVID, presidential transition, and a lot of excuses to be honest.
Lloyd: What can listeners do to help?
Natalie: Listeners can call Armed Services Committee members. Those are the most important people that can help. The Armed Services Committee can make the DoD sit before them in a hearing and answer questions. Listeners can call congressmen and women, their local senators, the Pentagon and the Secretary of Defense. Say enough is enough – we have men and women dying waiting for this to happen.
Matt: Lloyd, we’re talking about $400M that the Pentagon has – money that should be going to the family members of soldiers who are victims. And instead, these claims – more than 100 of them – are languishing at the Pentagon, just untouched. You can see why these family members are furious, and lawmakers are upset too because they were reaching out to the Department of Defense for answers. In Jackie Speier’s case, her office told me that the DoD flat-out ignored her. My source on Capitol Hill told me that lawmakers are going to be grilling DoD officials in the coming days. Hopefully out of that, we’ll be getting more answers and clarity as to what’s going on here.
Natalie: I want to just brag about the work Matt did as well. When Matt did this story, he showed up and took it seriously. I truly believe Matt’s work should go down in history as the most impressive investigative work. At the beginning of this case, I was speaking with reporters all day, all night, every day, and Matt was the only reporter willing to run with this. He had the intuition and moral compass to know this was important – it didn’t matter if we won or lost, but it was important to fight for the right thing and bring awareness to it. We happened to win because we gave it our all. People like Matt were there in the very beginning, showing up in Congress, flying to Tampa, not missing a moment. It was amazing how he continued to drive the story forward. I believe it takes a team to accomplish something great, and it’s awesome when you have someone like Matt on your side for a case. I couldn’t have done it without him.
Matt: That’s very kind of you, thank you.
Lloyd: Battles need allies, and no matter how talented, strong and dedicated one person is, that person needs allies. The fact that you could track that and be as effective as you were speaks volumes.
As we wrap up, I just want to thank both of you for being with me today. This podcast was put together to educate the public about the issues of medical malpractice so people could know how to spot it, protect themselves and prevent it from hurting people they care about. You both have been very educational and helpful in understanding these issues better.
You can read the Q&A and listen to Pt. 1 of our interview with Matt Grant and Natalie Khawam here.