Bill named after Fort Bragg soldier suffering terminal cancer
By RACHAEL RILEY | The Fayetteville Observer, N.C. | Published: May 4, 2019
(Tribune News Service) — A bill named after a Fort Bragg soldier is making its way through Congress after he testified this week that he can't hold the doctors who misdiagnosed him accountable for his terminal cancer.
Rep. Richard Hudson, whose congressional district includes Fort Bragg, is a co-sponsor of the bill which would allow service members to bring claims against the federal government in cases of medical malpractice or negligence.
Hudson first met Sgt. 1st Class Richard Stayskal in 2018 after the soldier received the cancer diagnosis.
The Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019 would preserve the Feres Doctrine's intent of not allowing a service member to sue if their care was received in the battlefield or is job related. It is bipartisan, or supported by Republican and Democrat Congress members, Hudson said.
Stayskal enlisted in the Marine Corps in 2004. He was a machine gunner and scout sniper for four years, until he was wounded in 2004 in Iraq.
He was selected in 2017 to attend the Special Forces Underwater Dive School combat dive qualification course and required to have a scan of his lungs. Stayskal had problems breathing during dive school and by April 2017, he was taken to Womack Army Medical Center.
The emergency room doctor required him to have an x-ray, then diagnosed Stayskal with walking pneumonia.
He later learned that a civilian doctor at Womack Army Medical Center at Fort Bragg had failed to diagnose a 1.5 centimeter-sized tumor on the upper right lobe of his lung.
"This life changing news that could have been addressed nearly six months earlier while the cancer was still contained to one area of my lung -- was inexcusable," Stayskal said during his testimony Tuesday, pausing to wipe his eye.
By January 2018, the cancer had spread to the left side of his neck, lymph nodes, spleen, liver, spine and right hip joint. On Jan. 22, 2018, he was diagnosed with Stage IV terminal cancer.
He is no longer able to complete a warrant officer course and is in the process of getting military medical discharge.
Hudson said Stayskal's testimony was emotional.
"It just really had an impact on me," Hudson said. "I became determined that I don't want our service members deprived of their civil rights because of medical malpractice just because they wear a uniform."
The Federal Tort Claims Act allows citizens to sue the federal government in cases of negligence.
Yet, the Feres Doctrine exempts military service members from being allowed to sue the government.
"The spirit of that was you don't want a medic in a battlefield situation and the stress and the pressures of that situation to hesitate when taking care of a soldier, because they're worried about being sued," Hudson said.
Hudson said he thinks the Feres Doctrine is needed, but in cases not related to combat or training service.
Soldiers like Stayskal should be able to "seek redress," in cases of medical malpractice, he said.
Stayskal was shot in the back by enemy fire.
He said his medical records show a bandage was stuffed into his back and wasn't found and pulled out until he returned to his duty station stateside.
"Never complained about it, never had an issue with it," Stayskal said. "That was part of my service. That was part of combat. We accepted stuff like that. Things were going to happen. Decisions were going to be made."
It's when medical malpractice occurs to service members in non combat or non training incidents that has spurred Stayskal to seek a change to the Feres Doctrine.
About six months since his first emergency room visit, Stayksal's tumor had doubled in size to about 2.8 by 2.2 centimeters.
His commander requested Stayskal be released by Womack Army Medical Center so that he could seek medical care off post that would be covered by the military's insurance.
Officials released him, but Stayksal said the process took several weeks.
Stayskal said not only did a military doctor's failure to detect his cancer "rob" him and his family of his life, he'd learned he and his family could not have "any recourse," because of a 1950s Supreme Court case that created the Feres Doctrine.
He said his wife and children are the "true victims."
The Feres doctrine, he said, shields negligent medical care given by military providers.
Hudson introduced the bipartisan bill with Democrat Reps. Jackie Spier, of California; Jamie Raskin, of Maryland; Ted Lieu, of California; and Charlie Crist, of Florida; Republican Reps. Markwayne Mullin, Oklahoma; and Guy Reschenthaler, of Pennsylvania, are also sponsors.
Spier, who is also chair for the House Armed Services' Subcommittee on Military Personnel, said it would provide service members the same rights as their spouses, federal workers and prisoners.
As the bill makes its way through Congress, Stayskal's case is also making its way to the Supreme Court.
He is represented by the Tampa, Florida-based Whistleblower Law Firm.
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