By: Denise Simon | Founders Code
The Supreme Court again on Monday opted not to hear a challenge to the legal precedent barring individuals from suing the military for medical malpractice, a decision blasted by Justice Clarence Thomas as short-sighted and unfair.
“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 (this issue),” Thomas wrote in his dissent to the court’s decision not to take up the challenge.
The move once again shifts from the courts to Congress debate on how to fix problems surrounding the Feres Doctrine, a 1950 Supreme Court decision that blocks troops from claiming medical malpractice damages for actions related to their military service. At the time, the court found that military personnel injured by the negligence of another federal employee cannot sue under the Federal Tort Claims Act.
Tuesday is a historic day in Washington D.C. It’s a day that a Fort Bragg soldier fought for as he battled terminal cancer, a diagnosis he says military doctors missed.
Stayskal along with his wife, Megan witnessed the Senate approve the National Defense Authorization Act (NDAA). The NDAA is the defense spending bill that includes a provision Stayskal fought for which will, for the first time, give active duty service members the right to be compensated for malpractice in military facilities in cases that are unrelated to combat.
So, what is the good news? The Senate.
In full disclosure, several months ago, I interviewed for radio Sgt. 1st Class Richard Stayskal and his lawyer. One of the hardest interviews I have ever hosted with a dedicated soldier dying of cancer.
Fourteen months after the North Carolina Purple Heart Green Beret first shared his story with FOX 46 – how doctors at Womack Army Medical Center misdiagnosed his lung cancer as pneumonia in 2017, delaying treatment that could have prolonged his life – his story is getting results and now changing federal law.
“It’s just an amazing feeling overall right now. I don’t have the words to describe it,” said Stayskal, who has stage 4 lung cancer, and came back to Washington to watch the historic vote inside the Senate chamber. “It’s a victory for everybody. For all the service members across the board.”
On social media, Stayskal and his attorney, Natalie Khawam, wrote: “We did the impossible!”
Back to the Senate and the NDAA:
The Senate overwhelmingly passed the National Defense Authorization Act by a vote of 86-8 on Tuesday. Tucked inside is a provision, sparked by Stayskal, that will allow service members who have been victims of negligent medical care to finally be allowed to hold the government accountable. The measure allocates $400 million to the Dept. of Defense to investigate and payout military medical malpractice claims internally. It will provide a measure of justice to service members and their families that have previously been denied.
“Everyone involved in this conference, including the Department of Defense,” said Sen. Jim Inhofe (R-Okla.), “recognized the importance of fixing the medical malpractice issue in a common-sense fashion.” The NDAA now goes to President Donald Trump to sign into law, which is expected to happen in the coming days. More here.
Every time I see a post on the Feres Doctrine, it makes the hairs on the back of my neck stand up. I should know because I have been down that same road too already. I even went to federal court in attempt to defend my case. Be aware that Feres also protects the US military from legal malpractice by its own incompetent – and many times unethical – military lawyers.
While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.
When I asked the top lawyer (then Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar. Lying to your licensing state bar is grounds for permanent disbarment. The state bar clearly acknowledged that the US Army lawyers were wrongfully “protecting” Fitzgerald and if they were not, the state bar would take action.
I then sued in federal court. It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald since got promoted TWICE as an Army lawyer. Feres was NEVER designed 60 years ago as this kind of “protection.” Today it protects against everything to include corruption, misdeeds, and even cover-ups by US Army lawyers wearing stars on their shoulders.
Fitzgerald became a prosecutor and sent people to Fort Leavenworth prison for violations LESS than what he is clearly guilty. Lying to the feds is a crime punishable by prison. You don’t believe that? Look at what happened with what Robert Mueller has done in 2018 and 2019.
Go to the link https://www.facebook.com/people/Feres-Doctrine/100011369043077 and you will see it all.