Fort Bragg Green Beret who had bill named after him has medical malpractice case denied

A Fort Bragg Green Beret who said his stage-four cancer was missed in April 2017 by medical providers at Womack Army Medical Center has had his medical malpractice claim denied.

Master Sgt. Richard Stayskal told Congress in 2018 that after noticing breathing problems during a combat dive qualification course at the Special Forces Underwater Dive School, he was diagnosed with walking pneumonia by doctors at Womack Army Medical Center.

Stayskal said Womack doctors failed to diagnose a 1.5-centimeter-sized tumor on the upper right lobe of his lung, which a civilian doctor diagnosed as stage 3A lung cancer.

By January 2018, the cancer had spread to the left side of his neck, lymph nodes, spleen, liver, spine and right hip joint. Stayskal was diagnosed with Stage IV terminal cancer Jan. 22, 2018.

“The denial of my claim by the Department of Defense, in my opinion, is a blatant act of betrayal, not only to myself but to every service member out there,” Stayskal said during a news conference Wednesday outside of the House Triangle in Washington D.C. He was joined by lawmakers who support his cause.

A spokesman for Womack Army Medical Center told The Fayetteville Observer in May 2019 that though officials don't discuss "specifics regarding any particular case with the public," officials are required to identify "unanticipated outcomes" in medical care "and take the required corrective actions" to reduce patient risk and improve care.

On Wednesday, a senior Army official said medical malpractice claims may be denied “ if they don’t meet all the requirements of general Tort and Negligence law.”

The senior official said the four elements required for a claim to be payable are duty, breach of duty, causation and damages, meaning that a claim is approved if the Army “failed to meet a medical standard of care,” that adversely affected an “individual’s prognosis and treatment.”

“A medical error alone is insufficient,” the senior official said.

More: Bill named after Fort Bragg soldier suffering terminal cancer

Recourse for military medical malpractice

Starting in 2018, Stayskal and his attorney Natalie Khawam took on the more than 70-year-old law known as the Feres Doctrine which prohibits military service members from suing the federal government.

Republican Rep. Richard Hudson, whose congressional district includes Fort Bragg, met Stayskal in 2018 and filed the Richard Stayskal Military Medical Accountability Act of 2019 along with former Democrat Rep. Jackie Spier, of California.  The act, which was included in the fiscal year 2020 National Defense Authorization Act, opened the door to allow military officials to review on a case-by-case basis claims of personal injury or death caused by a Department of Defense health care provider.

Stayskal said Wednesday that the denial of his claim disregards his and others’ rights to due process.

“Just because we don a uniform does not mean we cede our rights to be a civilian or an American citizen,” he said.

Josh Connelly, former chief of staff for Spier, said that the bill was interpreted incorrectly by the military.

The bipartisan bill, Connelly said, was a “clear fair path to compensation.”

“The result is not honoring the brave men and women that served our country that have been victimized by horrible doctors and revictimized by the process,” he said.

Staykskal said the doctors who reviewed his case on behalf of the military are unknown to him and he does not know their credentials.

“We’ve called upon some of the finest doctors in the nation who’ve all agreed that this is an egregious act of malpractice, but yet they seem to have the best doctors in the world that can say differently,” he said.

Sen. Markwayne Mullen, R-Oklahoma, said at Wednesday's news conference that military officials indicated that even if Stayskal had been properly diagnosed with cancer during his initial visit, his outcome would have been the same.

Khawam said that in a denial letter to Stayskal, military officials “admitted they breached the standard of care,” but said they didn’t engage in malpractice.

“We need to fix it immediately because unlike us, Richard does not have all the time in the world. Time is not on his side,” Khawam said.

During the news conference, Hudson said the misdiagnosis and “malpractice,” in Stayskal’s case is “unforgivable.”

“It’s a tragedy, an American tragedy when a hero like this has risked his life numerous times to serve this country, who’s been wounded in combat, who’s been awarded for his service, is treated like this,” Hudson said.

Rep. Mike Waltz, R-Florida, who is a Green Beret veteran, said during the news conference that service members and veterans live by a standard of never leaving a “fallen comrade behind” and taking responsibility for mistakes.

Watlz said he understands the law and Feres Doctrine is written so that medics and doctors in combat aren’t held liable for missteps in the care of wounded on the battlefield.

“But back here at home, when you miss it, when you screw up, when you misdiagnose, when there’s clear malpractice, then the service member, their family, needs recourse,” Waltz said.

More: Fort Bragg soldier’s medical malpractice case makes way in annual federal budget

What's next

Stayskal said that despite his claim being denied, the secretary of the Army agreed to pay him a small amount.

“Is it in good faith or is a quiet whisper of saying that, ‘We’ve been wrong and you were wronged, but yet I can’t say any more than this,’” Stayskal asked.

The senior Army official said the Army recognizes what “Stayskal and his family are going through.”

“We will continue to ensure that he receives the best possible medical care and that he continues on active-duty service as he requested. The secretary of the Army is committed to taking care of soldiers.”

More: DOD provides guidance for military medical malpractice claims in rule name after Bragg soldier

Mullen, from Oklahoma, said he and other members of Congress are working on legislation for the upcoming National Defense Authorization Act that would allow a third party outside of the Department of Defense to review military malpractice claims that are denied.

Stayskal said he plans to file an appeal with the Defense Health Agency.

“I ask that DOD just remember that there’s humility in life and that they accept it, they fix their wrongs, and they move forward to build a stronger, better military, as many of us want to continue to serve despite our ailments or our disabilities,” he said.

Staff writer Rachael Riley can be reached at rriley@fayobserver.com or 910-486-3528.

This article originally appeared on The Fayetteville Observer: Army denies Fort Bragg soldier's medical misdiagnosis case