You need to know about this major change in malpractice law
Key Takeaways
The Department of Defense has raised the cap on non-economic damages in military medical practices from $600,000 to $750,000.
A change to how non-economic damages are calculated has been proposed
The Department of Defense has rejected the large majority of claims received since the passing of the Stayskal Act in 2020
On October 20, the Pentagon announced a $150,000 increase to the cap on non-economic damage awards in medical practice cases against Defense Department hospitals and doctors. This raises the limit from $600,000 to $750,000. The change does not apply to economic damages, such as loss of wages.[]
The Pentagon is looking into the current regulations that subtract the amount of VA disability or Department of Defense compensation a service member will receive after they leave the military from total awards damages. Under the proposed change, future payments such as pain and suffering would no longer be taken from economic damages. Instead, they would only be subtracted from the portion of the economic damages awarded for lost wages.
This potential rule change is open to public comment for 60 days. After 60 days, the Department of Defense will review all feedback before deciding on the rule. Any currently pending cases will be determined after the final decision on this change.[]
Military medical malpractice case regulations
Military medical malpractice cases follow a different structure than standard cases and have their own specific regulations. Before the Stayskal Act was signed in 2020, service members weren’t permitted to bring malpractice charges against any Department of Defense facility or medical professional for any injuries acquired or illnesses developed on active duty. This regulation called the Feres Doctrine, has stood since it was enacted in 1950. The Stayskal Act didn’t overturn the Feres Doctrine, but it did give service members an avenue to make claims.[][]
Today, service members still cannot bring malpractice lawsuits against any military hospitals, physicians, or other medical staff. However, they can file an administrative malpractice claim with the Department of Defense. These claims don’t go to trial. Instead, The Department investigates the claim and issues rulings. Settlement funds are awarded if claims are approved. The Pentagon’s recent change to the non-economic cap and the potential change to how economic caps are finalized doesn’t change anything about the claims process.
Notable military medical malpractice cases
The Department of Defense’s malpractice process is still new, but there are already concerns that the process is slow and overly favors military hospitals. A December 2022 report estimated that the Department approved only about 2% of claims. As of March 2023, the Army branch of the Department had received 202 claims; they denied 144 and approved 11.[][]
In March 2023, the Department of Defense denied Master Sgt—Richard Stayskal’s claim. Stayskal appealed, but his appeal was rejected on October 24, 2023. Stayskal is the man the Stayskal Act is named for.[][]
In January 2017, Stayskal passed his required military physical before attending dive school. Over the next five months, he had trouble breathing and dropped out of dive school. He was seen by physicians on multiple occasions at Womack Army Medical Center in Fort Bragg, North Carolina, including an emergency room visit during which Stayskal was coughing up blood but did not receive a diagnosis. Eventually, Stayskal was cleared to see a civilian pulmonologist who diagnosed him with Stage 3 lung cancer. Stayskal’s medical records indicated that lung cancer was present on scans taken during his January 2017 physical.[]
Under the Feres Act, Stayskal wasn’t permitted to sue for medical malpractice. He took his case to Congress, eventually leading to the passing of the Stayskal Act. The denial of his claim is evidence to some who worked for this change in regulation that there is still work to be done.
In July 2023, a bipartisan congressional committee introduced the Healthcare Equality and Rights for our Heroes (HERO) Act. The act would allow service members to file suits through their local courts instead of through the Department of Defense.[]
“Although the SFC Richard Stayskal Military Medical Accountability Act improved the process for medical malpractice claims by service members, it can still leave some victims with limited options for compensation,” says committee member and democratic representative Jimmy Panetta.”“The HERO Act would allow those service members who suffered medical malpractice at a Department of Defense facility to file the appropriate claims and ensure that they are efficiently assessed by the DOD. Such an expansion and enhancement to the claims process is necessary for our service members and deserved for their service.”
Sgt. Stayskal has spoken in support of the HERO Act.[]
Stayskal’s case isn’t the only notable denial since the Department of Defense began processing claims. The family of Navy Corpsman Jordan Way, who died when he was allegedly over-prescribed opioids following shoulder surgery in 2017 at Twentynine Palms Base in California, also had their claim denied. Navy chaplain Mercedes Petitfrere delivered a stillborn son in 2018 after staff at the Naval Medical Center at Camp Lejeune, North Carolina, allegedly ignored and minimized her symptoms. In 2021, the Department of Defense rejected her malpractice claim.[]
However, some service members and their families have been awarded large settlement amounts. Army Staff Sgt. Alfred “Fred” Brazel was allegedly denied endoscopies and colonoscopies despite his repeated requests and bloodwork that indicated the need for imaging. His health had declined by the time he was diagnosed with stage 4 rectal cancer, and Brazel died two months later. In December 2022, his widow, Kait Brazel, received a multi-million dollar award.[]