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Changing the Rules on Troops Suing Military for Medical Malpractice

Until now, active and former military service members have not been allowed to sue the government for medical negligence – but a new bill is changing that. Called the 2020 National Defense Authorization Act (NDAA), the bill has a provision written in that allows servicemen and women to file medical malpractice claims against the Department of Defense.

The 2020 version of the National Defense Authorization Act comes after two previous legislative battles waged in hopes of better protecting military personnel against the injuries sustained as a result of medical negligence. One of the most recent attempts was a bill called the SFC Richard Stayskal Medical Accountability Act, which was introduced last April by a California representative.

The bill was named for Sgt. First Class Richard Stayskal, a Special Forces soldier whose lung cancer was misdiagnosed as pneumonia by army doctors. By the time Stayskal went to a civilian medical provider, his cancer had already progressed to stage 4, which is terminal.  Stayskal’s civilian doctor said that his patient’s health outcome could have been “significantly altered” had his doctor correctly observed diagnostic findings that “even a first year resident would have seen.”

Too many service members have fallen victim to the military’s medical negligence and until now, have had no recourse for seeking out damages as compensation for their injuries. Why? Because in 1950, the Supreme Court upheld the Feres v. United States decision, which stated the U.S. was not responsible for injuries sustained by members of the armed forces during active duty.

Here are just a few examples of veteran men and women whose lives and health outcomes were permanently and tragically changed because of medical negligence in military medical facilities:

  • Becket Kieran, an 18-year-old Marine private first class who died from necrotizing fasciitis, a flesh-eating bacterial infection. Doctors at Kieran’s California military base said his blue-colored skin and fever were because of the flu. They told him to rest and to take Tylenol. Kieran died just three days later.
  • Katie Blanchard, Army Captain. An employee in a military hospital set Blanchard on fire. During a subsequent interview, Blanchard asked: “Is it okay for us to have gross negligence and zero accountability in the military? Because if you look at my case, that’s what it is.” And,
  • Barbara Ospina Fitzsimmons, a retired Sergeant 1st Class who was left partially paralyzed after undergoing spinal surgery in 2014. The doctor was negligent and dislocated Ospina Fitzsimmons’ neck during the procedure – the dislocation resulted in a stroke, which military doctors then failed to notice for days. She is now almost 100% confined to a wheelchair and is in constant physical pain.

Before the 2020 NDAA, none of these servicemen and women could file medical malpractice claims against the Defense Department. Now, thanks to the bill’s provision, military personnel have two years from the date of the incident to file a medical malpractice claim against the Department of Defense – and they can be awarded damages. The legislation indicates that most claims would be limited to under $100,000, but it also allows the Defense Department to authorize larger verdicts depending on individual circumstances.

Supporting our troops includes holding negligent military medical providers accountable for their actions. Servicemen and women should receive the same standard of care – and be offered the same legal recourse should an inexcusable mistake occur – as everyone else. If your provider was negligent and you were injured as a result, call our firm. We can help.

Philadelphia Medical Malpractice Lawyers at Galfand Berger, LLP Representing Injured Individuals Since 1947

If you were injured as a result of a healthcare provider’s negligence, please contact our Philadelphia medical malpractice attorneys at Galfand Berger. With offices located in Philadelphia, Bethlehem, Lancaster, and Reading we serve clients throughout Pennsylvania and New Jersey. To schedule a consultation, call us at 800-222-8792 or complete our online contact form.

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