For the vast majority of us, our doctors are held to account not only by the high standards put forth by their educational and certifying organizations, but by the knowledge that we, ourselves, can take action against them for their misdeeds. Accidents are bound to happen at one point or another, but when an incident strays into actual malpractice, we as patients are able to bring the full force of the law to bear on finding justice and compensation.
Many are unaware that these vehicles and basic rights are not available to members of the military who are seen by government doctors. The Defense Department is protected from medical malpractice lawsuits by a legal precedent known as the Feres Doctrine. The statute, created almost 70 years ago in Feres v. United States, is rooted in the notion of sovereign immunity – an idea that goes back to our English roots. The net effect, however, was to establish that service members cannot sue the United States; and therein the United States Department of Defense, for injuries they sustain while on active duty or injuries they sustain as a result of the negligence of someone else on active duty in the armed forces. This would, by default, include their doctors, nurses, or any other active duty personnel tasked with their medical care.
Legislation is being considered that would create an exception to the Feres Doctrine. Named for Sgt. 1st Class Richard Stayskal, the law would have finally allowed service members to pursue justice for their injuries and have their day in court.
Sgt. Stayskal is a Green Beret currently fighting stage four lung cancer – a fight he might not have had to endure had his military doctors caught and treated his tumors during any of the several opportunities they’d had prior. Stayskal served as a witness during congressional testimony over the proposed legislation, as did Rebecca Lipe. Lipe was a judge advocate in the United States Air Force who suffered internal injuries as a result of ill-fitting body armor while she was serving overseas. After bringing her ailments to her military physician’s attention to be treated, she was ignored and subsequently accused of being adulterous in her relationship and contracting a sexually transmitted disease instead.
Perhaps if their doctors had been held to higher account, injuries like those sustained by Stayskal and Lipe would be less accepted as what is simply the substandard level of care that has become synonymous with military healthcare. While the legislature continues to consider changes to the Feres doctrine, the United States Supreme Court recently declined to hear arguments related to a petition from the husband of Moani Daniel. 33-year-old Daniel bled to death in a Navy hospital after giving birth to her daughter, Victoria.
Those impacted by military medical malpractice reacted with sadness to the Supreme Court’s decision. “Sadly, the justice system remains closed to our family, our colleagues and the families who commit their lives to military service,” said Walter Daniel. “Victoria and I won’t have the opportunity to learn what led to Moani’s death, and to ensure others don’t experience the same tragedy.”
Justices Clarence Thomas and Ruth Bader Ginsburg were the only judges who voted in favor of hearing the arguments.
