Although the military is sometimes put on a pedestal, they do make mistakes, and even end lives. The Feres Doctrine, based on a case 70 years ago prevented service members from suing for injury, stating that the United States could not be held liable.
The 2020 National Defense Authorization Act changed that.
The change was inspired by Green Beret Sgt. 1st Class Richard Stayskal, who was wrongly diagnosed with pneumonia by the military despite receiving a scan that showed a mass on his lung. He went back multiple times and was even told he had asthma at one point. When his condition worsened, he finally received permission to see a civilian doctor. It was there he received his true diagnosis: stage 4 terminal lung cancer. Due to the gross negligence of the military doctors, his cancer grew for six months before it was accurately diagnosed by his civilian doctor.
Stayskal served his country honorably first as a Marine, taking a bullet to the chest. From there he served as a Special Forces soldier. Neither did the damage that will ultimately end his life. That was instead caused by the military.
On January 1st, 2020 his attorney legally filed the very first claim against the Department of Defense as a victim of malpractice. A day that was over 70 years in the making and fought for by Stayskal and others. Despite having a terminal illness, he knocked on every door in congress and demanded to be heard. His voice changed everything.
Under the 2020 NDAA, military members and those labeled next of kin can now file claims against the government for personal injury or death when it is caused by a military medical provider. But there are limitations. Service members are unable to file claims of medal malpractice when service is performed in a combat zone and their claims cannot go through the courts, but instead have to be settled administratively.
This means that the Department of Defense will directly pay claims under $100,000 and anything over that will be handled and paid through the Treasury Department. The victims will also have a time limit, meaning they have two years to file a claim or lose the opportunity to do so. Despite some horrific malpractice stories, if it was performed more than two years prior there’s nothing that can be done. The claim must state that it was “caused by the negligent or wrongful act or omission of a Department of Defense healthcare provider in the performance of medical, dental or related healthcare functions.” Also, the DOD has to substantiate it all, which gives full control to them.
Although the limitations sting, this change is to be celebrated considering how many times the Feres Doctrine has been challenged in court and those attempts failed at bringing about change. The new policy is also increasing accountability by requiring the Government Accountability Office to report on physicians within the DOD who have lost their malpractice insurance before they were hired. From there they will also be required to study patient outcomes who have filed claims with the DOD. The DOD will also be required to report to congress all of their claims.
To file a claim, here’s how you do it:
Army: Present your claim to the nearest Office of the Staff Judge Advocate, the Center of Judge Advocate at the medical center that caused injury or with the U.S. Army Claims Service by mailing it to 4411 Llewellyn Avenue, Fort Meade, Maryland 20755, ATTN: Tort Claims Division.
Navy and Marine Corps: Click here for the directions and all the forms needed to file a claim. Then mail everything directly to the Office of the Judge Advocate General, Tort Claims Unit, 9620 Maryland Avenue, Suite 205, Norfolk, Virginia 23511-2949.
Air Force: Present your claim to the Office of the Staff Judge Advocate or your nearest Air Force Base. You can also mail in your claim directly to AFLOA/JACC, 1500 W. Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762. POC: Medical Law Branch, AFLOA/JACC 240-612-4620 or DSN 612-4620.