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  • Writer's pictureDavid N. Damick

OUR GOVERNMENT STILL DENIES PROTECTION TO MILITARY MEMBERS

Updated: Dec 29, 2023

Seventy-seven years ago, every citizen was granted the right to sue the government when government employees committed negligent acts that harmed them. Seventy-three years ago, the Supreme Court slammed the door and took that right away from those who are serving in our military. Since then, no Congress – regardless of “party” and regardless of promises - has ever acted to restore service-members’ access to the Courts that every other citizen has.


The law that took away the rights of service members to claim compensation for government negligence is referred to as the “Feres Doctrine,” named after the case in which it was decided (Feres vs United States: https://supreme.justia.com/cases/federal/us/340/135/). There has never been a law passed by the legislature to justify this decision. There has never been an executive action supporting it. Yet the Feres Doctrine stands as a complete bar to the doors of the Courts whenever government employees carelessly hurt or kill someone who is actively serving in our military, even outside of any combat role.


Thus, while the civilian citizens of the United States are allowed to sue for compensation when a Veteran’s Administration or even a military hospital employee hurts them through malpractice, a service member is left without recourse to justice, even when the malpractice had nothing to do with combat or training. The real-world consequences of this are even more appalling, as discovered recently by a Green Beret, Master Sgt. Richard Stayskal, and the organizations and political representatives that thought they had made a change in that law.


In Sgt. Stayskal’s case, there is not much dispute that doctors at Womack Army Medical Center Master negligently missed a sizeable tumor in the Green Beret’s lung, instead writing his condition off as “walking pneumonia.” There is no dispute that the Feres Doctrine barred Stayskall from going to court and from receiving any recovery under the FTCA – the law allowing suits against the government for this kind of problem for everyone who is not in active duty service (https://www.epa.gov/ogc/federal-tort-claims-act-ftca). So, on his behalf, politicians and legal organizations worked for years against the odds to pass an amendment to the law which would allow servicemembers during peacetime to challenge medical negligence which harms them. The law passed as the “SFC Richard Stayskal Military Medical Accountability Act of 2019” (https://www.congress.gov/bill/116th-congress/house-bill/2422/text).


At this point, Stayskal and his legal and political supporters thought they had achieved a historic victory that would help service members like himself to regain their legal rights. However, these hopes were ultimately cast down yet again. Instead of allowing a citizen-soldier to go to court, the Act was changed to only allow the injured soldier to make a claim with a special military panel under the Military Claims Act (https://www.govinfo.gov/content/pkg/CFR-2020-title32-vol6/xml/CFR-2020-title32-vol6-part842-subpartD.xml). That panel does not allow actual trials; it is simply a place where one submits the soldier’s claim to a military panel who does not have to reveal its consultants or experts, has sharp limits on what it can award, and its decisions are not reviewable.


As SFC Stayskal, now dying of Stage IV cancer, recently found out, that panel can say “no” and there isn’t anything anyone can do about it: https://www.washingtonpost.com/dc-md-va/2023/03/29/army-malpractice-richard-stayskal-claim-denied/.

This article does not intend to argue that the Military Claims panel was wrong, or right, fair or unfair, in this particular case. It is my argument – as it has been for years – that denying citizens the right to go to the courts for a remedy for wrongs done against them by the government IS unjust. And denying them on the basis that they chose to serve this nation in uniform compounds that injustice.


Our office represents citizens seeking redress against the government when hospitals or their medical staffs are negligent. We serve and act under the Federal Tort Claims Act anywhere in the country when needed, and are glad to consult with and join with your attorneys for whatever they need. To balance the damage; to repair the harm; where the balance is a measure of justice. We contend that this should be available to all citizens, regardless of their choice to serve.


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