The brave individuals who serve in our military make many sacrifices to protect our country, including risking their personal safety and foregoing precious time with family. One sacrifice that service members should not have to make is receiving less compensation for medical malpractice claims because their injuries occurred while they were on active duty. Hopefully, changes published on May 10, 2024, in the Federal Register will help put an end to this practice.
In 1950, active duty service members were barred from filing claims against the federal government for injuries or deaths that occurred as a result of military service pursuant to the U.S. Supreme Court decision Feres v. United States, 340 U.S. 135 (1950). As a result, active duty service members were unable to file civil suits for military medical malpractice. Fortunately, this changed when Congress enacted the bipartisan cosponsored Stayskal Provision in 2019. This provision was named for Army Master Sergeant Richard Stayskal, a father of two and member of the Green Berets who lobbied tirelessly for this legislation after he suffered a missed diagnosis of lung cancer at a military hospital when he was just 36 years old. The Stayskal Provision allows Department of Defense (DoD) Officials to review individual claims of personal injury or death caused by a DoD health care provider for circumstances like those surrounding Master Sergeant Stayskal’s care.
Nevertheless, the DoD’s determination of total damages to be awarded proved problematic because non-economic damages were offset or reduced by compensation otherwise provided by the DoD or the Department of Veterans Affairs (VA). Until recently, this prevented military families from receiving full compensation for non-economic damages such as pain and suffering. Thanks to the valiant efforts of Private First Class Dez Del Barba and his family, this DoD policy was changed pursuant to the May 10, 2024 rule on Medical Malpractice Claims by Members of the Uniformed Services. In 2019, the Army did not act on Pfc. Del Barba’s positive test result for a Strep A infection and he developed necrotizing fasciitis resulting in the amputation of his left leg. Thereafter, Pfc. Del Barba and his family advocated for years for this important new rule that states, “[T]otal potential damages will no longer be reduced by offsetting most of the compensation otherwise provided or expected to be provided by DOD or the [VA] for the same harm that is the subject of the medical malpractice claim. Instead, only economic damages will be reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or the VA . . . . This rule also clarifies future lost earning may be awarded until the time DoD determines the claimant is, or is expected to be, medically rehabilitated and able to resume employment . . . .”
Although these changes are significant, there is still much to improve about this process. Of the 597 claims the DoD has received thus far, only 3% have been approved. Indeed, the Army Claims Service denied Master Sergeant Stayskal’s claim and his appeal was also denied based on their determination that the delay in his cancer diagnosis did not change his treatment and prognosis. As a result, Master Sergeant Stayskal is now advocating for the Hero Act, proposed legislation that would grant service members the right to take their medical malpractice claims to District Court instead of the DoD. It is remarkable to see Master Sergeant Stayskal and Pfc. Del Barba work tirelessly to create these changes not just for themselves and their families but also to better the lives of all service members who experience military medical malpractice. These actions embody the character of the selfless people who serve in our military.
If you or a loved one experience a medical malpractice injury while under the care of healthcare providers at a military or VA hospital, you should reach out to an attorney right away. Contact the experienced attorneys at Berkowitz and Hanna, LLC if you have any questions about your legal rights regarding this concern. To schedule a free, no-obligation consultation, call 203-324-7909 or contact us online today.
Berkowitz Hanna
