North Carolina Green Beret fighting cancer, government, over medical mistake

- Sgt. 1st Class Richard Stayskal, a Green Beret from North Carolina, is battling stage four cancer, and now the government, after a medical mistake. 

"Things like this I don't think should happen," said Stayskal. "It's unfair."

Stayskal still has the sniper's bullet that pierced his left lung in Ramadi, Iraq, in 2004. "A good souvenir," he joked. The attack almost killed him. For his service to our country, Stayskal was awarded a Purple Heart. 

"It's a reminder how fragile life is," he said, holding the bullet. "Something could change everything in an instant."

Last year, at age 36, breathing became difficult for the healthy Army Special Forces soldier. 

"While I was sleeping I felt like I was drowning," he said. 

Doctors at Fort Bragg ran tests. A CT scan was taken. He was sent home. 

"They didn't tell me anything," said Stayskal. "They said my physical was fine."

But his symptoms got worse. Four months later, in May 2017, he was rushed to Womack Army Medical Center, barely conscious, according to his wife.

"They had to crack down on his chest to get him to pop his eyes open," said Megan Stayskal, who kept thinking, "Why is he not breathing?"

Medical records indicate the military's doctors took another look- a "retrospective review" -  of his January CT scan. This time, doctors noted an "abnormality" that "needed" attention. A "possible mediastinal mass" was spotted and a "transbronchial biopsy" was "advised."

For some reason, Stayskal and his wife say they were not told any of that. Instead, records indicate, he was told he had pneumonia. 

"They checked my heart and said everything was fine," said Stayskal. 

But everything wasn't fine. When he began coughing up blood, he tried tried to make an appointment to see a pulmonologist on base. He was told he would have to wait at least a month.

"I said, 'Something isn't right. I need to be looked at. Somebody needs to take me seriously. Somebody needs to help me,'" Stayskal recalls saying. "And I just kept getting told, 'Sir, new patients are not a priority.'"

In June 2017, he was approved to see a civilian doctor and a new CT scan was taken. It was then that he would finally learn what was wrong.

"Did a biopsy and when I woke up my wife was crying," said Stayskal. "And he [the doctor] was telling her that I had cancer."

Stage four terminal lung cancer. His tumor has metastasized and spread to his spine, spleen and neck. 

"I feel great because I don't want to believe that it's there," he said. "So, if it's false hope, it's still hope. But there's days I just really try not to believe that I have it. And, some days, I'm good at convincing myself."

"Pretty much how I go about my days," he added, voice cracking, after a brief pause.

Stayskal is now being represented by attorney Natalie Khawam with the Whistleblower Law Firm in Tampa, Fla. That is where FOX 46 met Stayskal and his wife. The law firm is now pursuing a $10 million lawsuit against the government alleging medical malpractice.

"What do you think would have happened if they had detected this earlier?," asked reporter Matt Grant.

"We don't have a man who's dying," said Khawam. 

The law firm hired board certified radiologist Dr. Louis Leskosky to review Stayskal's CT scans. 

"If I were testifying in court," said Dr. Leskosky. "I would call it a case of gross malpractice."

Dr. Leskosky says the military's doctors should have detected Stayskal's cancer when they took his first CT scan in January 2017, six months before a civilian doctor did. This mistake, he says, allowed the aggressive tumor to go untreated and "double in size."

"It was completely obvious," said Dr. Leskosky. "A [first year] resident would have seen this. I can't fathom an experienced radiologist missing this case."

But the case is unlikely to make it to trial. That's because under a 1950 Supreme Court decision, called the "Feres Doctrine," active duty military are prevented from suing the government for injuries incidental to military service. If Stayskal was a civilian he would have the right to sue for medical malpractice. 

Because he was active duty, he can't. 

The Feres Doctrine is meant to prevent soldiers from suing for injuries suffered during war. Supporters say soldiers, who voluntarily signed up to serve, shouldn't be able to sue their employer, the US government. 

"Soldiers signed up to fight for our country, fight for our freedom," said Khawam. "They didn't sign up to be malpracticed on."

The fight now heads to Congress.

"It violates a sense of right and wrong internally," said Rep. Richard Hudson (R-Concord).

Rep. Hudson met with Stayskal and calls his story "heartbreaking." He wants to change the law so soldiers, like Stayskal, can sue under certain conditions. 

"I think we really ought to take a serious look a the Feres Doctrine," said Hudson. "It seems like, just in a sense of fairness, there ought to be a pathway for someone like Rich who can pursue this if he feels he ought to."

Department of Defense officials refused to comment on Stayskal's case. FOX 46 asked if anyone had sympathy for what he and his family are going through but Pentagon officials wouldn't even offer that. 

"Reversal of the Feres Doctrine would destroy the premise of the no-fault compensation system currently applicable to all workers' compensation programs, including military compensation programs," said Pentagon spokesperson Maj. Carla Gleason.

But Khawam says this isn't about workers' compensation, pointing out Stayskal took a bullet and never complained. For them, this is about medical malpractice. 

For Stayskal and his wife, it is about their two daughters, aged nine and 11, growing up without a father. 

"What motivates you to keep going?," asked Grant.

"I try to set examples for my kids of you gotta do the right thing, you gotta fix the things that are broken," said Stayskal. "If you don't do it, who else is going to do it?"

Stayskal says he has been given at least a year left to live. For now, he is taking life "day by day."

Government's Response

FOX 46's investigation raises serious questions about the quality of medical care the brave men and women who fight for our country receive. We asked if the doctors and radiologists who were involved with Stayskal's case are still employed, if his case was ever investigated and if any changes were made. Fort Bragg and Womack Army Medical Center both declined to comment.

Fort Bragg referred questions to Womack which referred questions to US Army Claims Service. 

"We're bound by the existing law and jurisprudence," said Lt. Col. David Anglin, with Army Claims, referring to the Feres Doctrine. "But, if it changes, we'll comply with whatever the law is."

Army Claims referred us to Army Medical Command which referred us back to the Department of Defense. 

"We cannot discuss ongoing or pending litigation," said Army Medical senior public affairs officer Maura D. Fitch. 

The Department of Defense told FOX 46 in a statement: 

"The Supreme Court decided in 1950, in Feres v. United States, that military personnel may not sue the United States under the Federal Tort Claims Act for personal injuries or death incurred incident to military service. In the 68 years since, Congress and the Supreme Court have often considered but never acted to reverse the Feres Doctrine for medical malpractice or other cases.

Reversal of the Feres Doctrine would destroy the premise of the no-fault compensation system currently applicable to all workers' compensation programs, including military compensation programs.

 

All State and Federal workers' compensation laws provide a no-fault compensation system as the exclusive remedy for work-related injuries. Employees may not sue the employer to seek larger recoveries, but employees will be compensated even if there was no negligence. The military compensation system has the same premise, except that military members are considered to be 'on duty' 24-hours a day. Their no-fault compensation applies to virtually all injuries at work or at home, and they may not sue their employer (the United States) for any injuries. Repeal of Feres would destroy that premise, essential to all employment-related compensation systems." -Maj. Carla Gleason, Pentagon spokeswoman. 

 

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