Military Medical Malpractice
Romano Law Nurse Corner
SFC Richard Stayskal Military Medical Accountability Act of 2019
The SFC Richard Stayskal Military Medical Accountability Act was introduced following the unfortunate events in Sergeant First Class Richard Stayska’sl life. Sgt. Stayskal, a 37-year-old Green Beret, began experiencing severe breathing problems in early 2017. After a night of being unable to sleep due to his shortness of breath, Stayskal checked himself into an Army Medical Center on post in Fort Bragg, North Carolina.
The doctors at Army Medical Center took a CT scan of his chest and later sent him home informing him that he “was fine”. Stayskal however was far from fine. As he found out a few months later when he was rushed to a Veterans Administration hospital for a second visit. The doctors reevaluated the previous CT and noticed a suspicious abnormality requiring immediate attention, indicating in the records was that SFC Stayskal needed an immediate trans bronchial biopsy. Unfortunately, neither Stayskal, nor his wife received this critical information and were sent home after being told he had a case of simple pneumonia. Sometime after being diagnosed with pneumonia, Stayskal began coughing up blood.
Eventually, PFC Stayskal was diagnosed with Stage IV lung cancer and was told he had a life expectancy of a little over more than a year.
Moved by Stayskal’ s story, as well as many others who suffered from medical malpractice at the hands of military health care personnel, Representative Jackie Speier introduced H. R. 2422, the PFC Richard Stayskal Military Medical Accountability Act in April 2019.
Historically, the military members have been blocked from filing such claims under the Feres doctrine, named for the plaintiff in Feres vs. United States, the 1950 Supreme Court decision that ruled that active duty military personnel could not hold the federal government liable for personal injuries they suffered incident to service.
The new legislation lets service members hold the federal government liable for medical malpractice, but the law comes with significant limitations:
A “substantiated claim” of under one hundred thousand dollars will be paid directly to the service member or surviving beneficiary by the Department of Defense. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Victims have two years from the date of the injury to file the claim. However, victims seeking redress in 2020 are able to file claims for injuries that occurred in 2017.
Although the new legislation creates a path to redress for military malpractice claims, there are some roadblocks in place. Those with injuries caused by military medical malpractice prior to 2017, no matter how egregious, do not have a way to recover damages. Even for those who are able to file a timely claim, it appears that this service member has no Federal Court or other recourse if the service member does not agree with the Defense Department’s assessment of his/her case. Also note that the Department of Defense has little institutional experience in handling medical negligence/ malpractice claims. Notwithstanding the limitations of this legislation, this is an important and significant change in law it opened an avenue to justice for service members who have received negligence care
Veterans injured in a VA hospital due to medical malpractice by a doctor or negligence by an employee of the Department of veteran’s affair may file suit under the Federal Tort Claims Act.
Comment: The detrimental pitfall of the FTCA: Overturning Feres & Endorsing the Sargent First Class Richard Stayskal Military Medical Accountability Act of 2019. 52. Tex. Tech L. Review. 877, Summer 2020
Combating the Feres Doctrine, 7 St. Thomas J. Complex Litigation. 1 Summer 2020
We are the Romano Law Nurse Corner - Susan Ramsey and Amie Goldberg, both practicing attorneys and nurses here at the Romano Law Group. Here is a little more about each of us:
Susan Ramsey is both an attorney and an RN. Ms. Ramsey’s professional experience began as a Registered Nurse in the Intensive Care Unit at Yale New Haven Hospital. While pursuing her Bachelor’s Degree, she was a counselor with the New Haven Rape Crisis Program. During her time with the Program, Ms. Ramsey counseled sexual assault survivors and performed seminars for local police departments, universities, and high schools. During her time working as a registered nurse, Ms. Ramsey decided to attend law school. Ms. Ramsey graduated from CUNY Law School, and has practiced law in several different State and Federal Courts. She is a Florida Heath Care Risk Manager and a member of the Palm Beach County Sober Home Task Force. Ms. Ramsey actively litigates cases involving catastrophic injuries and wrongful death on behalf of survivors, cases include injuries suffered by victims of professional negligence, product liability and medical negligence.
Amie Goldberg is both an attorney and a certified APRN. After completing a Bachelor of Arts Degree at Whittier College, Ms. Goldberg attended nursing school at Emory University. Ms. Goldberg’s professional experience started as a Registered Nurse at Egleston Children’s Hospital taking care of children with congenital heart disease. After a few years, she continued working in all areas of the hospital while attending Kennesaw State University on weekends in order to get her Master’s Degree in Nursing with a specialty of Primary Care Nurse Practitioner/Family Nurse Practitioner. During her time as an APRN, Ms. Goldberg decided to attend law school at St. Thomas University in Miami, Florida. Since graduating, she has mainly practiced in the areas of personal injury and worker’s compensation, fighting for the rights of injured people. Since joining the Romano Law Group, Ms. Goldberg has been the Director of the Opioid Litigation Project. Ms. Goldberg also practices in the area of medical malpractice and nursing home negligence, bringing an inside perspective and knowledge to help get justice for our clients.