A provision in the fiscal 2020 National Defense Authorization Act will allow active-duty military personnel or their surviving families to seek compensation for personal injury or death caused by malpractice by military doctors or dentists.

But the proposal stops short of letting service members sue the federal government in malpractice tort claims, a legislative compromise that has some legal scholars declaring victory, while others question how the new process will work.

The bill, which passed the House today and is expected to move through the Senate later in the week, would let active-duty victims or survivors file a claim with the Defense Department for cases of medical negligence or malpractice by military health providers in medical facilities outside combat zones.

If the claim is substantiated by the Department of Defense and determined to deserve less than $100,000, DoD would pay the claim directly to the member or beneficiary. If the defense secretary decides that a sum larger than $100,000 is warranted, the claim would be forwarded to the Treasury Department for payment.

Victims would have two years after the malpractice incident or omission to file a claim, with the exception of the first year of the legislation’s enactment. Those seeking redress in 2020 would be able to file claims for cases dating to 2017.

If the bill is signed into law by President Donald Trump, it will be the first time in nearly 70 years an active-duty service member or their survivor would have redress in such claims.

Until now, the 1950 U.S. Supreme Court decision Feres v. the United States has kept troops from suing the federal government for injuries deemed incidental to military service, including medical malpractice.

The new legislation does not overturn Feres, but Rep. Jackie Speier, the California Democrat who championed the effort to change the law, called the provision’s inclusion a “landmark day in the fight for justice.”

“Service members and their families finally have a path forward in seeking compensation for medical malpractice committed by military health care providers, and the Defense Department will have to take their claims seriously,” Speier said.

Earlier this year, Speier introduced the Sgt. First Class Richard Stayskal Military Medical Accountability Act, which sought to allow troops to sue the government for damages in malpractice cases.

The bill was named for a former Marine and Army Special Operations soldier whose military health providers failed to see a 3-centimeter mass in one of his lungs on a pre-training CT scan. After repeatedly going to military physicians after the scan with health problems and told he had asthma or pneumonia, Stayskal found out from a civilian pulmonologist, that he actually had Stage 4 lung cancer.

Despite battling the terminal disease, Stayskal hired an attorney, Natalie Khawam of the Whistleblower Law Firm in Tampa, and pursued his case in Congress, arguing that Feres was outdated and unfair when applied to military medical malpractice.

Speier said Tuesday the provision would not have gone forward if it hadn’t been for Stayskal, who knocked on nearly every door in the House and Senate.

“Today belongs to … Stayskal, who … forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to D.C. and heroic advocacy,” Speier said.

Khawam said she and Stayskal plan to travel to D.C. this week to watch the Senate vote. She said they are thrilled that a workaround was found in the face of opposition from some lawmakers, including Sen. Lindsey Graham, R-S.C., a former Air National Guard judge advocate general who has repeatedly advocated for preservation of the Feres ruling.

The proposed bill specifically states that it “does not change or repeal the Feres Doctrine,” but Khawam argued that the “reality is we have just changed history and changed the law to allow the military to not be barred by Feres.”

“We are providing legal recourse and compensation. The means may be different. But it’s the same end result, just a different means of accessing it,” Khawam said. “I actually am really impressed that they created this. It’s brilliant. This is saying, ‘Hey to all those haters who didn’t want to change Feres and repress our service members: here’s to you. We figured out a way around your motives and your issues.’ ”

But Speier has called the fix “far from perfect.”

She said Tuesday she has “serious concerns” that under the law, the Defense Department will run the claims process. She still believes service members deserve their day in federal court, the same as military family members, federal civilian employees and federal prisoners.

“I will continue to work to address the myriad injustices that remain due to the Feres Doctrine,” Speier said.

Earlier this year, Paul Figley, professor of legal rhetoric at American University’s Washington College of Law, testified before the House in support of Feres in medical malpractice, noting long-standing government concerns that overturning the law could result in different monetary values placed on service members’ deaths or dismemberment.

DoD, also has an established compensation system for such cases, Figley argued.

On Tuesday, Figley told Military Times that the compromise in the pending bill is a “much, much better bill” than the original proposed Stayskal legislation, but it has problems. First, claims will be handled using “uniformed standards consistent with the generally accepted standards uses in a majority of states,” yet states laws vary so widely, determining what this means puts a burden on the Defense Department, he said.

Second, unlike similar claims filed in the State Department, DoD malpractice claims will not go to the Department of Justice for consideration before going to Treasury — a step that could help determine the appropriate amount to be awarded in a case.

“If the appropriate officer in the Secretary of Defense Office determines an amount to be paid is meritorious, they are going to shoot it straight to Treasury. This is really not in the competency of the SecDef’s office. How many wrongful death claims do they see?” Figley asked.

Finally, it will create a different value system for service members’ death or dismemberment based on circumstance.

“This will be an issue because this is going to get people who lose a leg because of malpractice a lot more money than a person who lost their leg because it got shot off or was injured in a truck wreck,” Figley noted.

The new legislation fails to account for all the egregious cases that came before 2017, including those rejected in the past decade by the U.S. Supreme Court, such as the tragic case of Air Force Staff Sgt. Dean Witt, who suffered severe brain damage during a botched routine appendectomy.

Witt was left in a vegetative state before he died three months later.

Or the case of Navy Lt. Rebekah “Moani” Daniel, whose death at a Navy hospital in Bremerton, Washington, following the birth of her first child in 2014 was attributed to an inadequate response by providers to postpartum hemorrhaging.

She bled to death without ever having held her newborn daughter.

Earlier this year, the Supreme Court justices rejected the Daniel case. But unlike previous cases the justices had refused without comment, Justice Ruth Bader Ginsburg wrote that she would support granting the Daniel petition, while Justice Clarence Thomas wrote a dissent to the petition’s denial.

“Such unfortunate repercussions — denial of relief to military personnel and distortions of other areas of law to compensate — will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres," Thomas wrote.

Walter Daniel told Military Times Wednesday that the Supreme Court’s rejection of his wife’s case was a “tough outcome” and he still believes Feres should be overturned.

But, he added, the new legislation is a “step in the right direction.”

“Congress has recognized that not holding medical personnel accountable is a problem in the military health care system. The men and women of the armed forces deserve better protection for the sacrifices they make for America,” Daniel said.

In making his case for overturning Feres when it comes to military malpractice cases, University of San Diego School of Business professor Richard Custin, a long-time proponent for rejecting Feres for reasons beyond medical malpractice, cited the Daniel case.

“All sides of the political spectrum are interested in changing this. I mean, look, when you’ve got Thomas and Ginsburg lining up …” he said. “Lindsey Graham should be ashamed of his position because there is bipartisan support for rejecting Feres.”

He also said he finds it troublesome that as part of the claims process, the Defense Department will be “the negligent party, the judge and the jury" for deciding claims.

“We need a more comprehensive rejection of Feres,” he said.

The number of claims that might be filed a year is not known. According to the Defense Health Agency, the number of “sentinel events” — those resulting in death or serious injury, including loss of limb or function or a serious psychological injury — increased in military medical and dental facilities from 121 in 2013 to 319 in 2016.

How many of those involved active-duty patients was not disclosed.

In a 2018 report by the Government Accountability Office, DoD also conceded that its methods for tracking such adverse events and responding to them was unreliable.

The proposed defense policy act includes a provision that will require GAO to report on the number of physicians and other medical providers at DoD who lost their medical malpractice insurance before they were hired and study the outcomes of patients who have taken action against DoD for negligence or medical malpractice.

Khawam said that in addition to Stayskal’s claim, she has “at least another dozen” she plans to file for clients in 2020. But first, she said, she looks forward to “throwing a party for Richard,” who has responded well to an experimental treatment.

“I’m happy that our military will be provided for, compensated for, any kind of medical malpractice. They are victims too.” Khawam said.

Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.

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