Bill that would give soldiers right to sue government for medical malpractice stalls in Senate

A bipartisan bill that would allow soldiers the right to sue the government for medical malpractice has stalled in the Senate due to opposition from a key senator.

“If you don’t want to support this bill just don’t obstruct it from being passed,” said Stayskal’s attorney Natalie Khawam. “This is a bill that’s bipartisan. It’s not Republican. It’s not Democratic. It’s American.”

The bipartisan bill, which was co-sponsored in the House by Rep. Richard Hudson (R-Concord), stemmed in part from a nearly year-long series of FOX 46 investigations into the military medical malpractice case of North Carolina war hero Richard Stayskal. The bill, which passed the House, would allow soldiers the right to sue for medical mistakes in military hospitals. It is now stuck in the Senate, where it will likely go nowhere, due to opposition from Sen. Lindsey Graham (R-SC).

Graham chairs the Senate Judiciary Committee and will not allow the bill to be negotiated.

The Sfc. Richard Stayskal Military Medical Accountability Act of 2019 was added to the National Defense Authorization Act.

“It’s important to just keep pushing through while I can,” Stayskal said last month, noting his health has “slowly taken a turn for the worse.”

“I started something,” he added. “I have to see it through.”

FOX 46 first reported on Stayskal’s botched care at Womack Army Medical Center a year ago. Since then, the Purple Heart Green Beret’s story has received national attention. In 2017, doctors at Womack Army Medical Center misdiagnosed his lung cancer for pneumonia, records show. Stayskal now has stage four terminal cancer, which has spread throughout his body. In between treatments, he travels to Washington, D.C. asking lawmakers to support his bill, which would give his fellow soldiers the right to sue for malpractice.

“Prisoners have legal recourse, civilians, everybody has legal recourses in the United States of American but our military,” said Khawam. “That’s concerning.”

Khawam says the bill would hold negligent doctors accountable and bring justice to Stayskal’s wife and two daughters, who he’ll eventually leave behind.

“There’s this shield, this protection, that allows negligent doctors to walk away,” said Khawam.

The “shield” she is referring to is called the Feres Doctrine. The nearly 70-year-old Supreme Court ruling prevents active-duty soldiers from suing the government for negligence resulting in injury or death. Department of Defense officials oppose the bill, arguing it will disrupt military hierarchy.  Opponents also cite the cost of future lawsuits.

FOX 46 caught up with Sen. Graham in Charleston at the Citadel Military College of South Carolina and asked why he opposes the bill.

“Why do you think soldiers like Richard Stayskal, who have been the victim of extreme medical malpractice, should not be allowed to sue?,” asked FOX 46 investigator Matt Grant.

Sfc. Richard Stayskal

"I have been a military lawyer for 33 years,” said Graham. “The deal is: You sign up for the military. You get disability. You get benefits. Your family gets well taken care of and you’re not able to sue. It’s not just malpractice. You have the Federal Torts Claim Act that’s available to you. But, when pilots fly new planes, we’re not gonna create liability there. I think it’s a trade-off that’s stood the test of time.”

Khawam says the bill is narrowly tailed to allow an exemption in the FTCA for soldiers to sue for medical malpractice. It would not apply to the makers of “new planes,” she said.

Graham’s aides have met with Stayskal and Khwam but the senator has not yet made himself available to meet with either of them. The two have met with Vice Pres. Mike Pence twice, Pres. Trump and dozens of members of Congress from both parties.

“Would you be willing to meet with Richard Stayskal?,” asked Grant

“Sure, I’d be glad to meet with him,” Graham responded after hesitating a moment. “But it’s not going to change my mind.”

If you would like to make your voice heard, you can contact Sen. Graham’s office at (202) 224-5972 or click here.