Our Active Servicemembers Deserve Better

“The Feres Doctrine leads to not only medical malpractice but also the abuse of power, mistreatment of survivors, lack of transparency and lack of accountability.”

-Alexis Witt, the widow of Air Force Sergeant Dean Witt

In 2003, Air Force Sgt. Dean Witt had a routine appendectomy at Travis Air Force Base. Tragically, after the procedure, Witt’s nurse administered a lethal dose of fentanyl and incorrectly inserted a breathing tube into his esophagus, depriving his brain of oxygen. Witt was left in a vegetative state for three months until his wife, Alexis, decided to have her husband’s feeding tube removed. The same nurse was linked to at least three other deaths, including the death of another airman just a year prior to Witt’s death.

In any other circumstance, Mrs. Witt would be able to hold accountable those whose negligence caused her husband’s death. However, because of a nearly 70-year-old Supreme Court decision that prohibits active duty servicemembers from suing the government, including for medical malpractice, Mrs. Witt is left without recourse.

In 1950, the Supreme Court held in Feres v. United States that the United States is not liable under the Federal Tort Claims Act for injuries to active duty servicemembers, including medical malpractice by military personnel. As Mrs. Witt’s story makes clear, this decision has significant, heartbreaking impacts on servicemembers and their families.

Now, there is a chance to right this wrong. Rep. Jackie Speier (D-CA), chairwoman of the House Armed Services Subcommittee on Military Personnel, recently introduced the Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019 The bipartisan bill would allow service members and their families to sue the U.S. government in cases of medical malpractice. According to Speier, the “Feres Doctrine is a travesty” which “denies service members who put their lives on the line for this country the same access to the justice system enjoyed by service members’ spouses, other federal employees, and even prisoners. Creating an exemption for medical malpractice is long overdue.”

The bill was introduced on April 30 after its namesake, Army Sgt. First Class Richard Stayskal, joined Mrs. Witt and former servicemember Rebecca Lipe in delivering stark testimony in the House. In his testimony, Stayskal revealed that he now has Stage 4 terminal cancer as a result of misdiagnoses. Military medical professionals repeatedly misread his radiological tests, and it was only after Stayskal visited a civilian doctor that he was properly diagnosed. In fact, the civilian doctor was shocked that none of the military doctors diagnosed the obvious presence of tumors in his lungs – even when Stayskal began coughing up blood. During the six months of failed diagnoses by military medical professionals, Stayskal’s tumor doubled in size and because of the late diagnosis, the cancer spread throughout his body, including his neck, lymph nodes, and spine.

According to Rebecca Lipe’s testimony, at age 27 she was an Air Force captain and deputy staff judge advocate serving in Iraq in 2011. Lipe needed to constantly wear body armor while on duty in Iraq, but as it was designed for men, the body armor did not fit her. As a result, it failed to protect her vital organs and ultimately caused multiple “sports herniations” in her pelvis. Military doctors in Iraq kept asking her if she was having an extramarital affair as they believed she was showing symptoms of STDs, even when the STD tests came back negative. As the pain worsened, Lipe was evacuated to Landstuhl Regional Medical Center in Germany. However, military doctors initially refused to admit her, telling her that she was just having period cramps. After failing to correctly diagnose the development of a pelvic infection, the military sent her to Eglin Air Force Base in Florida for further treatment. While in Florida, Lipe recalled how she “was constantly in pain … I got to the point where I was suicidal because I was literally being told this was all in my head. There’s only so much you can be told that before you start to think you’re going crazy.”

After a year of worsening pain, Lipe went to a nonmilitary doctor, who immediately discovered the small pelvic hernias caused by the ill-fitting body armor. While a civilian surgeon repaired her abdominal wall, the delay to her treatment resulted in her being hormonally depleted, which caused nerve damage and vaginal atrophy. As a result of continued negligence by military medical personnel, Lipe can no longer have children.

Tragic stories like these cry out for the victims to have some form of recourse. Yet the justice system does not seem disposed to act. As far back as 1987, in a dissent in United States v. Johnson, Justice Antonin Scalia disdain for the Feres Doctrine is clear: “Feres was wrongly decided, and heartily deserves the widespread, almost universal criticism it has received.” In Johnson, the Supreme Court dismissed the wrongful death action brought by a widow of a Coast Guard helicopter pilot who died because of a FAA flight controllers negligence. In Scalia’s dissent to the facts of Johnson, he said “had [the service member in the case] been piloting a commercial helicopter when he crashed into the side of a mountain, his widow and children could have sued and recovered for their loss.”

As recently as May 2019, the Supreme Court refused to hear arguments for Daniel v. United States, a case where Rebekah Daniel, a Lieutenant in the Navy, died from postpartum hemorrhaging as a result of military medical malpractice. Despite being at ideological extremes, both Justice Clarence Thomas and Justice Ruth Bader Ginsburg disagreed with the decision to deny the petition to hear the case.

Inaction is no longer an option. We applaud Rep. Speier on her step to establish a right for servicemembers that civilians have long taken for granted. Passage of the Stayskal Act is critical in ensuring that members of the U.S. armed services and their families have equal protection under the law in the event of medical malpractice by military personnel.