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New measure would allow troops to sue for military malpractice mistakes

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After hearing tearful testimony from the victims of military medical negligence, a bipartisan group of House lawmakers announced new legislation to do away with the legal rules protecting the Defense Department from medical malpractice lawsuits.

“When doctors fail to perform or woefully misread tests, when nurses botch routine procedures, when clinicians ignore and disregard pain, servicemembers deserve their day in court,” said Rep. Jackie Speier, R-Calif. and the chairwoman of the House Armed Services Committee’s personnel panel.

“We’re not talking about special treatment. We’re talking about giving servicemembers the same rights as their spouses, federal workers, and even prisoners. When compensation schemes are insufficient, servicemembers should have their claims heard in the justice system.”

The new legislation — named for Sgt. 1st Class Richard Stayskal, a Green Beret fighting stage four lung cancer because of Army doctors errors — would allow malpractice lawsuits against the military by creating an exemption to the Feres doctrine, a 69-year-old legal precedent barring that legal action.

Critics have called the original decision flawed and unfair to military families, but Defense Department officials have said undoing the precedent would upset the current military compensation and benefits system.

“A combat injury or death would appear to be valued lower than an injury or death where a tort claim would be allowed,” said Jessica Maxwell, a department spokeswoman. “Such an inequity toward members injured or killed in military operations could not be sustained.”

But lawmakers behind the new legislation said the current system is also unfair, and revicitming families.

Stayskal was among the witnesses at Tuesday’s hearing and said Army doctors missed cancerous tumors on multiple occasions while they still could have been treated. He argued not being able to sue the department takes away impetus for them to take corrective action and “barred any chance for (my family) to become whole.”

Rebecca Lipe, a former Air Force Judge Advocate who served in Iraq, told lawmakers her internal injuries from ill-fitting body armor during her six-month overseas tour were ignored for months by military physicians. Instead, they accused her of having an affair and contracting a sexually-transmitted disease.

She said if she could file suit against the military for those mistakes, the action could potentially force changes in the medical review process, or in gender-specific body armor, or in other military failures.

Instead, she said, “I’ve completely lost faith in the Defense Department to take care of me.”

Speier’s bill would not cover any cases related to combat operations, and would only apply to mistakes that occur at major military hospitals and clinics. Medical treatments on ships or battalion aid stations would be excluded.

Plaintiffs bringing lawsuits could not receive compensatory damages and attorneys’ fees would be capped under existing federal laws.

Several Republicans on the armed services panel raised concerns that the topic belongs to the chamber’s judiciary committee, but voiced general support for a review of the Feres doctrine.

Three Republicans have already signed on to the legislation, and Speier said she expects more in coming days.

Past efforts to amend the legal precedent have run into opposition because of the potential costs facing the military. The new bill would only cover cases filed after implementation and those currently pending, limiting the potential legal exposure for the department. Costs of the plan were not released.

Speier called it a change to properly compensate families and force military leaders to better address medical shortfalls.

“Allowing servicemembers to sue the Department of Defense for medical malpractice will help root out this rot,” she said. “There are few incentives better than the threat of legal action to push an organization to change its behavior. This would lead to better quality care for our servicemembers and higher levels of readiness.”

Meanwhile, Stayskal’s attorneys on Tuesday filed a new lawsuit against the Defense Department seeking compensation for the mistakes in his case. Their hope is that Speier’s legislation will move ahead in time for the case to be considered by the courts, and not simply rejected under the Feres doctrine.





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