Bill Would Allow Service Members to Sue Military for Medical Malpractice

September 16, 2019

U.S. Senators John Kennedy (R-La.) and Mazie Hirono (D-Hawaii) have introduced legislation to allow active duty service members to sue the military for medical malpractice and negligence.

A Supreme Court decision in 1950 banned active duty service members from suing the military for medical malpractice or negligence, a decision that is known as the Feres Doctrine. The Supreme Court in 2011 refused without comment to hear a California case, Witt vs. U.S., seeking to remove malpractice liability shields for military hospitals.

The sponsors say their legislation will help overturn the Feres decision.

The legislation is titled SFC Richard Stayskal Military Medical Accountability Act of 2019 in honor Sgt. Richard Stayskal. In two separate appointments, Army doctors detected a cancerous tumor growing in Stayskal’s lungs, but they did not initiate the proper treatment or make him aware of the tumor’s existence. Under the Feres Doctrine, he cannot sue the military hospital that failed to inform him of his condition for medical malpractice.

“We owe service men and women our utmost respect and the best care when they come home. When medical malpractice or negligence occurs, patients have the right to sue their doctor, but the Feres Doctrine has stripped that right from members of the military. This is an awful precedent, and I’m very grateful to Sgt. Richard Stayskal for bringing this issue to light,” said Kennedy.

“For decades, the so-called Feres doctrine has denied our service members their day in court when they are the victims of medical malpractice. It is slap in the face to the men and women who serve our country,” said Sen. Hirono.

There have been other congressional efforts to change the law but they have failed.

The Congressional Budget Office has estimated it would cost the government an average of $135 million every year in claims. If the law were made retroactive, the estimated price tag was $2.7 billion over the next 10 years.

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