Military families and service members won a partial victory Monday night over the "Feres Doctrine" when a proposal that would allow the Defense Department to review claims and pay compensation for military medical malpractice made it into the final version of the 2020 defense budget bill.
Service members and families would still be barred from suing for military medical malpractice in federal courts by the doctrine, named for a 1950 Supreme Court case, but the secretary of Defense could permit review of claims for redress.
The proposal "authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death of a member of the uniformed services that was the result of medical malpractice caused by a Department of Defense health care provider," the conference committee said.
The proposal to allow claims against the DoD was included in the conference committee's approval of the massive 2020 National Defense Authorization Act, which detailed $738 billion in military spending and a 3.1% military pay raise.
The full House is expected to vote on the NDAA as early as Wednesday, with a Senate vote to follow. Congress is working against a Dec. 21 deadline for passage to avoid a potential government shutdown.
A continuing resolution keeping military spending at 2019 levels is set to expire Dec. 21.
The National Military Family Association views the proposal to allow the DoD to review malpractice claims as a first step in overturning the Feres Doctrine, leaders said.
"We're curious to see the process that will be established" to accept claims for review, said Kelly Hruska, NMFA's government relations director.
"Our association supports elimination of Feres," Hruska said, and "we're disappointed it was not totally eliminated."
The language of the proposal states that the DoD can review claims and pay compensation "for personal injury or death caused by the negligent or wrongful act or omission of a Department of Defense health care provider in the performance of medical, dental, or related health care functions while such provider was acting within the scope of employment."
The DoD would not be liable for lawyers' fees under the proposal, and lawyers representing claimants would be limited to 20% of the total amount of claims awarded, the proposal said.
Claims that could be considered would be retroactive to January 2017, which is when Special Forces Sgt. 1st Class Richard Stayskal has alleged that his lung cancer was misdiagnosed at Fort Bragg's Womack Army Medical Center in North Carolina.
Stayskal, who says his cancer is now Stage 4 and terminal, has lobbied Congress to change the law barring claims. His case was taken up by Rep. Jackie Speier, D-California, chair of the House Armed Services subcommittee on personnel, who sponsored the military medical malpractice proposal.
She said the credit belongs to Stayskal, who "forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to [Congress] and heroic advocacy."
In a statement, Speier said she had concerns about allowing the Defense Department to oversee and run the newly created claims process.
"But it was important that we seize this unique political moment" to provide an avenue to file claims, she added.
-- Richard Sisk can be reached at Richard.Sisk@Military.com.