House lawmakers push bill allowing service members to file malpractice claims in district court
Stars and Stripes July 14, 2023
WASHINGTON — Congressman Darrell Issa said he wants to make certain active-duty service members who experience medical malpractice at a Defense Department facility can take their claim to district court.
“We’re not implying that medical malpractice is rampant, but it does happen. And when it does happen, we want to make sure that those who are serving in uniform be treated as well as those who have served in uniform and their families,” the Republican from California said Thursday.
Issa, a former Army captain, is pushing legislation with Reps. Richard Hudson, R-N.C., Jimmy Panetta, D-Calif., and Michael Waltz, R-Fla., that continues to expand on a law passed by Congress in 2019 called The Sgt. First Class Richard Stayskal Military Medical Accountability Act.
The law allows troops to file claims with the Defense Department alleging malpractice by military health care providers. The process also allows them to seek damages for economic losses, pain and suffering.
Stayskal was an Army Green Beret diagnosed with lung cancer in 2017 at the age of 36. He had undergone chest scans earlier that year for diving school and was told his results were normal. He discovered, however, the military hospital had misread the exams and failed to recognize the tumor in his upper-right lung.
Stayskal wanted to sue for malpractice but a Supreme Court case from 1950 banned military malpractice lawsuits, declaring the government was not liable for injuries to service members on active duty. Stayskal lobbied Congress for the law, which is named in his honor.
The new bill — Healthcare, Equality and Rights for Heroes, or HERO Act — would allow troops to take their claims to district court.
“Right now, the government … is actually working against our service members who suffer from medical practice within a [Defense Department] medical facility,” said Panetta, a former Navy reservist who served in Afghanistan.
The way that the process works now is a service member’s first step is submitting a claim with their military branch, Panetta said. If that is denied, they have an opportunity to resubmit the claim. Under this process, there is only a 2% favorable resolution rate for the claimant.
“That’s not working and that is just not right,” he said. “The HERO Act would make it work by allowing service members who suffered medical malpractice the same rights as many other Americans. That’s the right to take the claim to a local federal district court, allowing them a more streamlined, a more fair option for their claim and ultimately for justice.”
The bill was introduced in the House on June 23 and referred to the Judiciary Committee of which Issa is a member.