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What is the Feres Doctrine? Can Active Duty Military Sue for Medical Malpractice?

LeeAnn Riddle   |  May 6, 2019   |  

What is the Feres Doctrine?

The Feres Doctrine and Military Medical MalpracticeThe Feres Doctrine is also known as the Feres-Stencel Doctrine or the Feres rule.  According to the Feres Doctrine, the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty, on furlough, or resulting from the negligence of others in the armed forces.

The Feres Doctrine was established in 1950 by the United States Supreme Court case Feres v. United States. In the Feres case, the Supreme Court ruled that U.S. servicemen who had suffered after picking up highly radioactive weapons fragments from an airplane crash were not permitted to recover damages from the government.

What is medical malpractice in the military?

Remember, military medical malpractice does not include being hurt or killed in combat. Medical malpractice in the military occurs when a military doctor or other health care provider is negligent or deviates from professional standards, resulting in injury or death.

The Feres Doctrine is highly controversial.

In 2019 momentum has been building all around the country to change the Feres Doctrine to give more legal rights to active duty military who allege medical malpractice by military doctors.

A North Carolina hero tackles the Feres Doctrine

A Green Beret from Fort Bragg, North Carolina has been fighting for his life — and for changes to the Feres Doctrine that would affect all active duty military.

On April 30, 2019, Sgt. 1st class Richard Stayskal testified before the House Armed Services Committee in Washington DC at a hearing called “Feres Doctrine – A Policy in Need of Reform?”

Stayskal’s story is a heartbreaking tragedy.

Stayskal is a Purple Heart recipient with stage four lung cancer. His cancer was missed in a January 2017 physical at Womack Army Medical Center. Doctors failed to identify a large tumor in the upper-right lobe of his lung during a CT scan.  Shortly after the physical, Stayskal’s health declined and six months later he was diagnosed with terminal cancer.

In the hearing, Stayskal told the committee:

“The failure of the military doctor’s gross negligence and failure to detect and treat my cancer when it was first noted on the CT done on me in January 2017 is the mistake that allowed the aggressive tumor to double in size and rob me and my family of my life, without any recourse due to a 1950 Supreme Court case that created the Feres Doctrine.”

Stayskal has a wife and two daughters.

Richard Stayskal & The Feres DoctrineDuring the hearing he also said:

“I want to say that this does affect me obviously, but my children are the true victims.”

Stayskal’s daughters are getting special treatment and counseling at school, while trying to understand how this could happen to their father.

The Military Medical Accountability Act of 2019

After hearing Stayskal’s testimony, Congresswoman Jackie Speier (D-CA) introduced the bipartisan SFC Richard Stayskal Military Medical Accountability Act of 2019.  This act will provide the opportunity for all service members who are victims of medical malpractice to file claims under the Federal Tort Claims Act.

According to Speier:

“A [prisoner] can sue under the FTCA for malpractice but a service member cannot who is not in a combat setting? This is a gross example of judicial activism of the worse kind.”

Close to home, Rep. Richard Hudson (R-NC) has joined Speier and colleagues from both parties to sponsor the bill. Hudson’s congressional district includes Fort Bragg, the nation’s largest military base and where Sgt. Stayskal was stationed.

“I admire him and the Stayskal family’s courage to advocate for these changes,” Hudson said. 

Should active duty military be able to sue for medical malpractice?

Some defense advocates argue that changing the Feres Doctrine may prompt frivolous lawsuits against the military. And while military servicemen and women are barred from bringing medical malpractice cases against the government, they and their families do receive compensation in the event of malpractice leading to injury or death.

According to U.S. Solicitor General Noel Francisco, “Service members are entitled to generous, no-fault statutory benefits for injuries sustained as a result of medical services provided by the military.”

Stayskal says it’s not enough.

He and many active duty military and veterans like him believe it is time for a change. According to Stayskal, there is no reason for the disparity in rights between active duty military and the rest of the country’s citizens.

What do you think? Should active duty military be allowed to sue the government for medical malpractice?