Tuesday afternoon’s Washington D.C. hearing before the Committee on Armed Services, titled “Feres Doctrine – A Policy in Need of Reform”, addressed an issue long overdue for change.
For 69 years, the Feres Doctrine has banned active duty armed forces members from using the Federal Tort Claims Act (“FTCA”) to file medical malpractice suits, allowing negligent doctors and nurses to continue practicing as they please.
Hearing witness Ms. Alexis Witt described how her husband, Staff Sergeant Dean Witt, went in for a routine appendectomy, received a lethal dose of fentanyl, and died. The nurse anesthetist who delivered the drug failed to call Code Blue, used pediatric resuscitation equipment, and misdirected SSgt. Witt’s breathing tube, preventing oxygen from getting to his brain.
Disturbingly, the nurse anesthetist who worked on SSgt. Witt was involved in another death one year prior, yet she was allowed to provide anesthesia to SSgt. Witt during surgery. Ms. Witt filed a wrongful death suit, but it was dismissed on the grounds of the Feres Doctrine.
Because of the Feres Doctrine, thousands of military members and their families have suffered permanent injury or death at the hands of negligent military doctors – without any sort of compensation.
But a hearing held on April 30, 2019 discussed changing the law. Here are my top 10 takeaways from Tuesday’s hearing.
#1. Feres Doctrine aims to prevent ill will and “double dipping”
According to witness Mr. Paul Figley J.D., Legal Rhetoric Professor with the American University Washington College of Law, the Feres Doctrine functions to eliminate unfairness among service members.
Say “Soldier A” loses her leg to a bomb on the battlefield, and “Soldier B” loses his leg to a bad infection caused by a drunk surgeon wielding a scalpel. Soldier A wouldn’t get the option of filing a million-dollar lawsuit to cover her injury. All she would get is VA disability benefits. But Soldier B would get VA benefits, PLUS be able to sue the doctor for millions in malpractice – for basically the same injury.
Mr. Figley explained that this imbalance would cause frustration and ill will. “Such feelings undermine military morale and cohesion.”
#2. Feres Doctrine is unjust and egregious
However, many at the hearing, including House Armed Services Subcommittee on Military Personnel Chairwoman Rep. Jackie Speier (D-Calif.), feel the Feres Doctrine is an unfair, nefarious, product of “judicial activism and Congress’ silence.”
Witness Dr. Dwight Stirling J.D., LL.M, CEO of the Center for Law and Military Policy and other reform supporters frequently referred to Justice Antonin Scalia’s dissent in U.S. v. Johnson.
In that case, Justice Scalia argues that the wording on FTCA exemptions proves that Congress never intended to exempt service members from the protection of the FTCA.
With regards to the issue of “double dipping,” Scalia opined, “The credibility of this rationale is undermined severely by the fact that, both before and after Feres, we permitted injured servicemen to bring FTCA suits, even though they had been compensated under the VBA,” adding, "the presence of an alternative compensation system [neither] explains [n]or justifies the Feres doctrine; it only makes the effect of the doctrine more palatable…”
According to Dr. Stirling, medical malpractice awards are continuously adjusted to account for outside benefits – it’s done every day.
Dr. Stirling added that banning service members from filing medical malpractice suits is anything but fair. “We’re giving more rights and protections to those in prison than to those who wear our uniform,” said Dr. Stirling. “Does this reflect our values? I have a hard time responding to that in the affirmative.”
#3. Military medical malpractice is systemic
The three victims who served as witnesses at Tuesday’s hearing have been horrifically injured by alleged military medical malpractice. For these witnesses, the problem wasn’t with one practitioner. Instead, multiple nurses and doctors within numerous military hospitals harmed these patients.
Sergeant First Class Richard Stayskal, Special Forces Green Beret, United States Army was a major part of bringing Tuesday’s hearing to fruition. After receiving an honorable discharge from the Marine Corps due to injury, the Army Special Forces selected Sfc. Stayskal to attend underwater dive school.
In order to enroll, Sfc. Stayskal had to get a CT scan on his lungs. Radiologists detected a lung lesion. They noted it, but never informed him and never requested a follow-up. They sent him off to diving class with an all clear.
Sfc. Stayskal, young and fit, soon began wheezing and coughing up blood. An ER doctor reviewed a lung X-ray and diagnosed him with walking pneumonia. One week later, Sfc. Stayskal was back in the ER with failing vision and concentration. Again, doctors diagnosed him with pneumonia. They prescribed prednisone and dismissed him.
Just 12 months after his first CT scan, doctors diagnosed Sfc. Stayskal with Stage 4 terminal lung cancer. It had spread throughout his body, to the neck, spleen, lymph nodes, hip, and spine. Had doctors addressed it at the first, second, or even third doctor visit, the cancer would have been treatable.
Witness Ms. Rebecca Lipe J.D., Former Air Force Judge Advocate and Associate, Steptoe & Johnson LLP, told a frightening tale of how multiple misdiagnoses and unnecessary surgeries caused years of severe pain and permanent damage to her reproductive system.
As ballistic vests still aren’t designed to fit a woman’s body, Ms. Lipe’s ill-fitting vest had to be overtightened around her waist during service, making the gear less protective and painful. She soon began having acute, debilitating abdominal pain.
Instead of conducting a complete medical exam, Ms. Lipe testified that she was accused of fabricating her pain and told her symptoms were normal pre-menstrual symptoms. Later, military doctors diagnosed her with pelvic inflammatory disease, and she was unnecessarily treated for malaria.
For over a year, Ms. Lipe underwent two unnecessary surgeries and hormonal medications that put her in temporary menopause at 27 years old, permanently damaging her reproductive organs. Finally, two civilian doctors diagnosed her with sports herniation as a result of wearing ballistic gear.
Unable to have children naturally, Ms. Lipe and her husband underwent seven rounds of in vitro fertilization (“IVF”) costing upwards of $60,000. During the military IVF treatments, a misdiagnosed ectopic pregnancy meant the removal of her fallopian tube. After a miscarriage, she was made to wait four days to have the fetus removed, which was then discarded without her permission.
#4. VA benefits aren’t a substitute for malpractice awards
One of the biggest arguments for keeping the Feres Doctrine intact is the notion that service members get VA benefits – they don’t need additional relief. But committee members and witnesses explained that VA compensation is not the same as malpractice recovery.
According to Ms. Witt, survivors’ benefits come with restrictions that malpractice suits don’t include. For example, as a widow receiving VA benefits, she must prove to the VA regularly that she has not remarried. Otherwise, her VA benefits will be discontinued.
There are also earned income restrictions. For instance, a veteran receiving an award of Total Disability Based on Individual Unemployability (“TDIU”) can only earn a marginal income of less than the poverty threshold or risk having his benefits reduced.
For some veterans or their survivors VA benefits aren’t enough, but yet they can’t take full-time work that pays too much, and they can’t improve their economic situation by working more.
#5. Military members aren’t told about Feres Doctrine
When asked how he first found out he couldn’t file a malpractice suit, Sfc. Stayskal said family had been encouraging him to pursue compensation. His wife called around 10 law offices explaining his horrifying story over and over, but all had the same answer – there’s nothing you can do. Finally, a whistleblower law firm explained the Feres Doctrine, that it is egregious, and needs to be fixed.
When asked if he was ever taught that malpractice is incidental to serving in the military, Sfc. Stayskal replied, “No. It wasn’t a discussion. I figured I’m serving with the best of the best everywhere I was at. So to assume that you needed to worry about something like that just wasn’t a thought on your mind. You assumed your chain of command all the way to the top had your support and would take care of you.”
#6. Military lacks necessary medical specialists
Active duty service members aren’t free to seek civilian care. Ms. Lipe testified that service members need to be able to access civilian providers and specialists when appropriate. For example, the military lacks specialists in female medicine like OB/GYNs and IVF specialists. Had she been able to seek care outside of the military, things may have turned out different.
#7. Trust in the system is broken
There is a special kind of trust that exists between the military leadership and service members and their families - that leadership will take care of them. But the witnesses at today’s hearing expressed that the Department of Defense’s (“DoD”) response has violated that trust.
Ms. Witt said she wasn’t made aware that her husband had been deprived of oxygen for so long. “Had I known, I probably would not have had him suffer in his hospital room for three months,” said Ms. Witt. “I probably would have taken him off life support at that time... and he probably would have been able to donate his organs at least. That affects like ten other people in the world that were probably waiting on those organs.”
“I’ve completely lost faith in the DoD to be able to take care of me,” said Ms. Lipe. “Both myself and my daughter… could receive all of our care on base for limited cost. Instead, I pay an exorbitant amount of money to pay for private insurance with my current employer because I don’t trust them. My husband, unfortunately, doesn’t have the option to see anything but military providers, and that terrifies me.”
#8. Families are the true victims of Feres Doctrine
Sfc. Stayskal testified that the true victims of the Feres Doctrine are the families and loved ones of the injured. Injured parties are typically unable to work enough to support their families. Survivors are unable to remarry or earn an amount over the limit without losing their VA benefits. The Feres Doctrine literally bars families from being made whole.
#9. Judiciary committee needs to act
Some committee members felt the judiciary committee, not armed services committee, has jurisdiction over this issue.
“I hope judiciary committee is listening to this,” said subcommittee member Trent Kelly (R-Miss.), “because these are very, very real discussions that need to be had in a committee that can actually do something about it.”
Congressman Paul Mitchell (R-Mich.) said, “The judiciary, the process by which the military can and cannot sue the federal government and other institutions, is not privy to this committee, so I am confused. The reality is the title of the hearing is “Feres Doctrine. A policy in need of reform? If it was about the provision of health care…that would be fine. But it’s not.”
Chairwoman Speier added, “We have been in conversation with a number of members on the judiciary committee. They are very anxious to work with us. We wanted to do this jointly with them today, but they had a markup, so that wasn’t something that we were able to arrange.”
#10. Bill introduced to amend FTCA
On Tuesday, April 30, chairwoman Speier introduced a bill to amend the FTCA. The Sfc. Richard Stayskal Military Medical Accountability Act of 2019 would amend the FTCA to allow military personnel to sue the federal government for damages relating to injury or death in cases of medical malpractice by military doctors.