MILITARY MEDICAL MALPRACTICE CLAIMS HANG IN LIMBO DESPITE NEW LAW – For the Military – Khawam Ripka LLP

MILITARY MEDICAL MALPRACTICE CLAIMS HANG IN LIMBO DESPITE NEW LAW

By Maggie BenZvi 

Master Sgt. Richard Stayskal has spent 20 years in the military, much of that time as a Green Beret, fighting for his country. For the past five years, he has been fighting for the military to finally pay him for the alleged medical malpractice he suffered while in its care. Despite the success of legislation that carries his name, he continues to fight.

“For a long time there, I was like, ‘Oh man, people care, people have faith, people just want to do good,’” Stayskal told Coffee or Die Magazine. “And now I’m sitting here three years later going, ‘Does anybody really care, or was it a show for votes or something?’”

Army doctors missed the cancerous growths in Skayskal’s lungs when he completed a full physical in January 2017 shortly before beginning dive school. He spent months and months coughing up blood, passing out, and losing his vision, and he was ultimately dropped from the dive course. All the while, doctors at Womack Army Medical Center told him he merely had walking pneumonia.

In June 2017, Stayskal finally saw a civilian doctor, who immediately diagnosed him with stage 3A lung cancer. That doctor told Stayskal that the progression of the disease could have been different if he had been diagnosed in January and that all the signs were present on his original scans.

Richard Stayskal poses with his wife, Megan, and their two daughters. Stayskal will retire in June 2022 and worries how his family will stay afloat amid his health struggles. Photo by Megan Stayskal.

The Richard Stayskal Military Medical Accountability Act, which was included in the 2020 National Defense Authorization Act, required each branch of the military to create a mechanism whereby service members who suffered medical malpractice while on active duty could sue for restitution. This was a workaround for a longstanding legal principle known as the Feres doctrine, which holds that active-duty service members cannot sue the US government under the Federal Tort Claims Act.

The new rule states that the adjudication of claims will follow the parameters of the Federal Tort Claims Act but will be administered by judge advocates in each military branch. The malpractice in question must have occurred in a Department of Defense medical center, inpatient hospital, or ambulatory care center, and the malpractice must have been committed by a covered DOD health care provider. Claims must be filed within two years of the malpractice in question. This was extended to three years for claims filed in 2020 for events in 2017, essentially grandfathering Stayskal’s claim into the system. 

Payments of up to $100,000 will be distributed directly from the Department of Defense, whereas larger payments will come from the Department of the Treasury. Any damages will be offset by payments from other programs, such as group life insurance, death gratuity, the survivor benefit plan, and Department of Veterans Affairs disability compensation.

But according to Stayskal’s lawyer, Natalie Khawam, no claims have yet been approved even under these strict provisions. 

“Nothing has been paid yet, unfortunately,” Khawam told Coffee or Die.

The DOD did not respond to Coffee or Die’s multiple requests for comment, but a DOD representative told news station WTVD-11 in December 2021, “The interim final rule allowing certain medical malpractice claims by Service members was published in the Federal Register on June 17, 2021, and became effective July 19, 2021. The Military Departments are currently adjudicating claims that have been filed since January 1, 2020, including issuing decisions on claims.”

Regarding his interactions with the lawmakers who supported the passage of the bill, Stayskal said that “the updates I usually get are, ‘We’re submitting questions,’ or, ‘We’re waiting for this NDAA to get through, we’re so busy with other things.’

“If you stamped your name on it and you’re not wholeheartedly fighting for this to be finished, I’m not sure why anybody put their name behind it. I hate sounding like that, but at this point, it’s like, convince me differently.”

At the moment, Stayskal’s health remains steady.

“My body is still responding well to my medicine, so I’m stable for now, which is good,” he said. But the cancer has progressed to stage 4 and is terminal.

He is looking forward to his chance to spend more time with his wife and two daughters after he retires from the Army in June, but he worries about their financial future living solely on his pension.

“It’s not that I can’t go find a job, but what job can I find that’s going to be cool with the fact that I’m going to have days where I don’t feel well, or I have treatment?”

Richard Stayskal and his wife, Megan, work closely with the Khawam Ripka law firm, our law firm to support other claimants under the Richard Stayskal Military Medical Accountability Act. Photo by Megan Stayskal.

Stayskal’s wife, Megan, now works for Khawam Ripka, the law firm that represents Stayskal and approximately 100 other families suing the Defense Department for medical malpractice. Many of the claimants reach out to Stayskal for support.

He said he tries his best to give the families hope and assure them policymakers were working as hard as they could. But sometimes, the words feel like a lie. “I know there are people who care. But are they the right people in the right positions?”

Stayskal believes the law will be implemented at some point. He just has no idea when that will be or whether he will live to see it.

“In 10, 15, 20 years, nobody will ever think twice about it,” he said. “But right now, it’s very real. It’s very serious for the individual lives.

“I always just hope that people are putting themselves in our shoes.”

Original Article here

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