CHARLOTTE, NC (FOX 46 WJZY) - An online petition has generated nearly 20,000 signatures, following a FOX 46 investigation, requesting Congress "protect our troops from negligent medical care" by amending the Feres Doctrine. On Capitol Hill, several lawmakers are now calling for a hearing and a new law.
The Feres Doctrine is a 1950 Supreme Court ruling that prevents active duty soldiers from suing the government for injuries incidental to military service. That includes suing for medical malpractice - even if a soldier was harmed, or killed, by military doctors.
The nearly 70-year-old Supreme Court decision is facing renewed attention following a FOX 46 investigation into the case of Sfc. Richard Stayskal, a North Carolina Purple Heart Green Beret, who now has stage four terminal cancer. Stayskal and his attorney, Natalie Khawam, point to evidence that appears to show doctors at Fort Bragg's Womack Army Medical Center failed to diagnose his cancer, which was detected by a civilian doctors six months later.
The delay in treatment allowed his tumor to double in size and metastasize, according to a radiologist who reviewed Stayskal's CT scans.
Khawam started the online petition which urges Congress to enact legislation that would change the Federal Tort Claims Act by allowing members of the military the right to pursue a medical malpractice claim.
If Stayskal was retired, or a civilian, he could sue for malpractice. Because he is active duty, under the Feres Doctrine, he can't.
The petition calls the Feres Doctrine "antiquated."
So far, more than 17,300 people have signed the online petition calling for a fedearl law to change the Feres Doctrine. Organizers hope to get 25,000 signatures.
"The main issue that we would like Congress to address with the Feres Doctrine is that the Court’s interpretation has broadened the scope of the exception currently codified in the FTCA to encompass injuries that occur from noncombatant activities in a time of peace," the petition reads. "The Feres Doctrine ignores the plain language of the FTCA and has led to unfair, absurd, and inconsistent results that treat service members differently than the rest of us. Most commonly, the Feres Doctrine has been used as an unfair defense that military medical personnel hide behind when such personnel fail to provide the basic care that would save a person’s life just because they are on active duty."
Stayskal and his lawyers believe doctors at Womack Army Medical Center should have been able to detect a tumor in a January 2017 CT scan. Doctors noted the tumor in May during a "retrospective review" and thought a biopsy was needed, according to medical records. However, Stayskal and his wife both say they weren't told any of that. Instead, they said the military's doctors told them Stayskal had pneumonia.
Coughing up blood, and being told he would have to wait at least a month to see a pulmonologist on base, Stayskal says he was approved to see a civilian doctor in June 2017 and have a new CT scan taken.
It was at that time that he and his family finally learned the tragic news.
The special forces soldier was told he had terminal stage four metastatic lung cancer. He says doctors have given him "at least a year" to live. The couple has two young daughters.
"This is a very important issue, especially to the military and veteran communities," the petition states. "We need Congressional intervention to change this unfair doctrine that has stripped hundreds of service members and their families of the same rights that all other citizens of our Country have when it comes to medical malpractice."