Let Soldiers Sue

Berman & Simmons attorney Taylor Asen authored this op-ed in support of a bill that would amend the Feres Doctrine and give active military the ability to bring medical malpractice claims to court and to finally seek justice. This opinion piece was published in the Portland Press Herald.

In 1946 Congress passed the Federal Tort Claims Act, or FTCA, which states that the “United States [is] liable . . . in the same manner and to the same extent as a private individual under like circumstances.” In other words, under the FTCA, a person has the right to bring a lawsuit against the government when she is injured by the misconduct of a government employee.

So, for example, when a VA hospital, or its doctors, commits medical malpractice, a patient is able to seek compensation under the FTCA. That is a good thing: not only for the particular veteran injured as a bad medical care, but for all veterans, whose care is better because of lawsuits that have exposed unsafe VA practices. Time and again, deeply troubling misconduct has been uncovered through FTCA lawsuits.

But there are major exceptions to the FTCA. The so-called “Feres Doctrine” is one. Created by the United States Supreme Court in 1950, the Feres Doctrine bars active military personnel from negligence claims against the government. Since its creation, the Feres Doctrine has been used by courts to prevent military personnel having their day in court, in cases ranging from medical malpractice claims to claims related to military sexual assault.

Congress is supposed to make the laws, and the courts are supposed to interpret them. But the Feres Doctrine was created by the Supreme Court out of thin air–there is no textual support for it in the FTCA, or in any other law passed by the Congress.

This year, the family of a Navy Lieutenant who died at a naval hospital during childbirth petitioned the Supreme Court to revisit Feres. Last month, over the objections of Justices Ginsburg and Thomas, the Supreme Court rejected the petition and refused to hear the case. Justice Thomas issued a written dissent to the denial of the family’s petition, so that he could highlight the baselessness of the rule preventing military personnel from exercising their rights in court: “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

Because the Supreme Court will not clean up the mess it has created, the only solution is for Congress to pass a law that explicitly overturns Feres. These days, however, saying that Congress is the only solution is usually equivalent to saying there is no solution at all.

But maybe not this time. There appears to be a growing bipartisan consensus that the Feres doctrine is terrible public policy. In April, a bipartisan group of House members introduced “the Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019,” which would allow servicemembers to bring medical malpractice claims.

The bill’s namesake, Sgt. Stayskal, served as a Green Beret. In January 2017 he underwent a CT scan at Womack Army Medical Center at Fort Bragg. The scan showed a mass in his lung, but it was missed by the doctors there. Sgt. Stayskal became chronically ill: he suffered from fits of wheezing, difficulty breathing, and blurry vision. None of the military doctors could figure out what was wrong. Finally, Sgt. Stayskal was sent for a consult with a civilian pulmonologist, who immediately sent him for a biopsy. It was then that Sgt. Stayskal learned that he had lung cancer. Tragically, by that point, the cancer had spread throughout his body, and was incurable.

Yet the Feres doctrine prohibits Sgt. Stayskal, who has spent nearly his entire adult life serving this country, from seeking compensation for what has been taken from him: the chance to live a full life. The rule is blatantly unfair. It strips American citizens who choose to serve our country of the most basic right to hold people accountable for their misconduct.

On April 30 Sgt. Stayskal, with only months to live, appeared before a subcommittee of the House Armed Services Committee to implore them to fix this law. Holding back tears, he explained to the committee why he had decided to come to D.C. to advocate for future victims: “The hardest thing I have to do is explain to my children when they ask me, ‘This doesn’t make sense, why is this happening?’ And I have no good answer to give them. And I say to them, that’s why I’m coming up here to help convince these folks in Congress to change this.”

I encourage everyone to watch his testimony. More importantly, I implore you to write your Congresspeople, to urge them to support this bill. It isn’t enough for Congress to tell us that they support our troops. They need to show us that they do.