U.S. troops who were hurt by military medical malpractice could get compensation for the first time after President Donald Trump signs an annual defense bill, but the legislation drew mixed reactions from advocates.
The compensation system in the bill, which will be overseen by the defense secretary, could be superior and yield faster payouts than civilian malpractice litigation, according to the attorney of a Green Beret who alleged the military misdiagnosed his terminal cancer.
However, allowing the military to determine compensation for its own medical mistakes is like the “fox watching the hen house,” said Dr. Dwight Stirling, chairman and CEO of the Center for Law and Military Policy, who testified to a House committee on the issue earlier this year.
Troops and their next of kin have long been barred from suing the military over malpractice because of a Supreme Court precedent from 1950 called the Feres Doctrine and instead must rely on existing benefits, such as disability. After years of debate and advocacy, House lawmakers backed language in the annual defense authorization bill (S. 1790) that orders the Pentagon to set up a system of compensation based on the type of malpractice. Trump is expected to sign the bill soon.
Defense Secretary Mark Esper will be required to consider claims for personal medical injuries and death by both service members and their surviving family members. The Pentagon will pay compensation based on similar cases and awards in the civilian court system, according to the bill.
Any compensation over $100,000 for a claim will be paid by the Treasury Department. Attorneys would be barred from collecting more than 20 percent of any claim or they will face fines up to $2,000 and up to a year in prison.
The Pentagon hasn’t estimated potential compensation for troops but lawmakers said it could be about $440 million over a decade. Military spouses, children and retirees are already permitted to sue the military for medical malpractice and there were 67 claims worth $59 million in fiscal 2018.
“Not only were we able to advance the ball here and get an exception to the Feres Doctrine, but we also got more than we even asked for out of this,” said attorney Natalie Khawam, who worked on the legislation with Congress and represents Army Sgt. 1st Class Richard Stayskal.
The North Carolina Green Beret briefly met Trump about the malpractice issue in July at a rally and testified in April to the House Armed Services Committee about how military doctors repeatedly misdiagnosed his lung cancer. The disease was terminal by the time it was properly identified, he said.
Khawam said the new law allows compensation for claims from the past three years to be filed in 2020, which will allow Stayskal to file a compensation claim with the military stemming from his diagnosis in January 2017.
However, Stirling said the new military system could be used to cover up doctor errors and deny victims access to documents and witness, unlike the civilian judicial process, that is independent and more transparent.
“Under the deal, service members are still barred from utilizing courts of law the way all other Americans can,” said Stirling, whose group has advocated full repeal of the Feres Doctrine. “They are forced instead to use an internal system controlled by military officials, bringing their claims before the same people who botched their surgery or misdiagnosed their cancer symptoms.”
The Pentagon declined to comment on legislation that the president had yet to sign into law.
Esper will be tasked with setting up the system and will be expected to report back to Congress on progress no later than June. Any reported malpractice or claim filed after Jan. 1 will be eligible under the new law.
“It’s a way to at least get on the right track,” said Rebecca Lipe, an attorney and former Air Force judge advocate who testified alongside Stayskal in April about her own experience with the military medical system.
“We’ll see what happens if claims start getting denied and what sort of remedies individuals have at that point,” she said.
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