Although members of Congress have fled the nation’s capital for their annual August recess, there’s guarded optimism that lawmakers may be open to reversing a seven-decades-old U.S. Supreme Court ruling that bars active duty military personnel from their constitutional right to pursue in the civil justice system claims that they have suffered harms while seeking medical services.

Advocates of this change saw cause for optimism that President Trump met briefly in July in North Carolina and encouraged Army Sgt. 1st Class Richard Stayskal, a terminally ill Green Beret who has become the focus of efforts to fixing the Federal Tort Claims Act (FTCA), Bloomberg news service reported. Jackie Speier, a California Democratic congresswoman, introduced a bill named after Stayskal and that would allow troops to file medical malpractice suits in federal court, because, as Bloomberg said:

“Stayskal went to Womack Army Medical Center at Fort Bragg in 2017 after feeling suffocated and coughing up blood, but the hospital misdiagnosed him with pneumonia during two visits, according to his congressional testimony before the House Armed Services Committee. By the time he saw a civilian doctor six months later, the lung tumor causing the problems had doubled in size. The tumor had showed up in X-rays done before he went to dive training, but nobody told Stayskal or diagnosed him.”

But he cannot sue his medical caregivers and seek justice and remedies for others to avoid mistakes due to the high court ruling involving the FTCA.

Active duty military personnel cannot bring a medical negligence claim for care at a military facility. This is called the “Feres doctrine,” after the Supreme Court decision, Feres v. United States, 340 U.S. 135 (1950). Under the Feres doctrine, members of the United States armed forces are barred from making a claim against the United States for personal injury or death arising “incident to service.” Military medical treatment received by a service member, while on active duty, has been held by the courts to be “incident to service,” and, thus not actionable, even if that treatment was for a purely elective procedure, and even if the procedure was performed negligently.

The U.S. Supreme Court recently declined to reverse its Feres ruling and left it up to Congress to decide if service members may sue for medical malpractice in the federal courts. Justices Clarence Thomas and Ruth Bader Ginsburg — who rarely agree on much — both wanted but were unsuccessful in getting their high court colleagues to revisit the inequitable, 69-year-old  Supreme Court decision.

Although Speier’s bill has eked its way in the House, Stayskal and other advocates of congressional action to reverse the Feres doctrine now believe that they may find a way forward in Congress creating an FTCA exemption for malpractice suits by active duty military in the annual defense authorization bill, Bloomberg reported.

Bipartisan supporters of such a move, including those who have supported Speier’s stand-alone bill, agree. And proponents see Trump’s meeting with Stayskal as a sign that the White House would back the change — which the Pentagon has taken the rare step of opposing.

Why the Pentagon resistance?

The Bloomberg article raises interesting questions why, notably in data that the military itself provides.

Officials, for example, concede that the General Accountability Office, a top government watchdog, reported that “medical incidents that lead to death or severe injury in the military’s global system of hospitals and clinics … increased to 319 in 2016 from 121 in 2013.” The Pentagon asserts that its rigorous reporting requirements, not a spike in bad or negligent medical and dental care, led to the trebling in problematic incidents.

But the Bloomberg article, in describing the complexities of military medical care, also notes that because active duty personnel cannot sue for malpractice, doctors in the Pentagon’s service do not carry malpractice insurance and are not required to. The military takes advantage of this legal loophole to hire contract doctors who cannot get malpractice coverage in civilian life, Stayskal’s lawyers argue, with his counsel Natalie Khawam telling Bloomberg: “When a physician commits malpractice, he or she is dropped by their insurance carrier. Only DoD medical facilities and VA hospitals do not require their civilian physicians to carry malpractice coverage. Given the fact that they are uninsured, the soldiers are not only receiving substandard care, they are unable to have legal recourse.”

What would be the burden of allowing active duty military personnel to seek justice and some level of compensation for medical injuries inflicted in Uncle Sam’s care? The Pentagon is fighting the Feres doctrine revision over a cost it estimates at $440 million over a decade, Bloomberg reported.

Speier, an Armed Services subcommittee chair, criticized the Pentagon for its resistance to allowing malpractice suits, saying, “It’s not going to cost that much money. If we get competent medical providers, I guess it wouldn’t be a problem.”

For the record, if the Pentagon’s estimate is accurate, that breaks down to $44 million annually in a military that received more than $700 billion from taxpayers in 2018. It’s also less than half of what Americans have forked over (an estimated $102 million) for the president’s frequent golf trips.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the havoc that can be wreaked on service members and their families when they receive bad or negligent military medical care at hospitals or clinics run by one of the armed services or the Department of Veterans Affairs. The Feres doctrine adds yet more complexity to malpractice cases that can be stressful to patients. Readers may want to check our law firm’s website for more details on who can and cannot sue over malpractice events at military hospitals and clinics.

Here’s hoping that lawmakers, especially if they are hearing from concerned voters, find a way to remedy the unacceptable Feres doctrine. It’s unfair to ask service personnel to take the highest risks and make great sacrifices, while taking away from them constitutional right we enjoy as civilians to pursue through the civil justice system appropriate claims of harm — medical malpractice suits that do not challenge the order, discipline, and function of forces on or near combat.

Doctors, hospitals, and insurers long have sought to demonize medical malpractice suits, but a building body of research shows they not only bring due justice and needed financial and medical support to the harmed, they also serve as an important way to rid medicine of bad and negligent doctors and other personnel. These too often are repeat offenders. We don’t and can’t have such poor professionals treating civilians—or service personnel.