‘Bodies Are Cheap’: Green Beret Renews Fight For Compensation After Army Failed To Detect His Cancer
- The Army denied Green Beret Richard Stayskal’s damages claim on the ground there was no evidence his cancer would be worse now if military doctors had not overlooked clear signs of a tumor in January 2017.
- The 2019 PFC Richard Stayskal Act was the first to allow servicemembers the chance to file complaints against the Department of Defense for injuries or deaths resulting from improper medical care.
- “The incentive to cover up mistakes is too great,” Dwight Stirling, founder of the Center for Law and Military Policy and Feres Doctrine expert, told the Daily Caller News Foundation. “The motive is to save the military as an entity — and the doctors who made the errors — embarrassment and public humiliation.”
In March of this year, the Army denied Green Beret Richard Stayskal’s $20 million medical malpractice claim, made under a landmark law passed in his name, after the military medical system failed for months to properly diagnose his lung cancer. Now, Stayskal and one of his attorneys, Natalie Khawam, say they are appealing his case, and are lobbying Congress to pass a new law that would allow Stayskal and other injured servicemembers to file for injuries through the federal court system.
After being diagnosed with Stage IV cancer in January 2018, Stayskal and his attorneys lobbied Congress to carve out a guarantee of servicemembers’ rights to file complaints against the Department of Defense (DOD) for injuries or deaths caused by improper DOD medical care. In 2019, Congress passed the Sgt. First Class Richard Stayskal Military Medical Accountability Act. However, the U.S. Army Claims Service notified Stayskal’s attorney in a letter sent in March that they had denied the claim Stayskal filed in 2020 under his namesake law, arguing there was no evidence his cancer would be worse now if military doctors had not overlooked clear signs of a tumor years prior.
Military and legal experts told the DCNF that the Army’s conduct was a violation of justice.
“The denial of the claim demonstrates that the internal review system of medical malpractice is a sham,” Dwight Stirling, founder of the Center for Law and Military Policy and Feres Doctrine expert, told the DCNF. “I feared it was going to be a case of the fox guarding the henhouse when Congress passed this compromise law rather than allowing injured service members to file civil lawsuits.”
Stayskal and Khawam are in the process of appealing through the DOD adjudication system, they told the DCNF, although Khawam previously told Bloomberg she did not expect the appeal, which was still being planned, to succeed. The two met members of Congress this week, including those involved in the original passage of the Stayskal Act, to find a fix that could include new legislation permitting claims to be made at the federal level.
‘Allowed That Cancer To Grow’
In June 2017, Stayskal was diagnosed with Stage III lung cancer at the age of 36 despite being told earlier that year his pre-diving school chest scans came back normal, according to his 2019 Congressional testimony. Months after the scans, he said he began experiencing difficulty breathing and coughing up blood, symptoms an emergency room physician at Womack Army Medical Center in Fort Bragg pegged to walking pneumonia in May 2017.
Later, he learned that medical personnel at Womack glossed over signs of an early stage tumor in his upper right lung.
“It wasn’t until about a month or two later that I found out that prior to me being discharged, another ER doctor had done a retrospective reread of the original CT scan completed for my physical on January 27, 2017, and noted that a mass about 2.8 x 2.2 cm was present on right upper lung at the time of the CT Scan and that a follow up should be scheduled for me. However, I was never informed of this until a few months later, and no follow up was ever scheduled for me,” he told Congress.
Stayskal finally visited a civilian specialist in June 2017 after several additional ER visits, when a biopsy revealed he had cancer, according to the testimony. He received a formal diagnosis of Stage IV lung cancer in January 2018.
An Army expert review board determined that while the military medical system did not meet the standard of care and missed a cancerous mass lodging itself in Stayskal’s upper right lung, the omission did not cause Stayskal’s cancer to progress, according to the March 15 letter.
The Army found “no evidence that [Master Sgt.] Stayskal’s prognosis or chance of survival was adversely affected by the delay in the diagnosis of lung cancer,” according to the letter.
Stayskal interpreted the letter to mean that, according to the Army’s logic, his claim would only be valid if he could demonstrate he might live longer had DOD medical officials caught his tumor during the initial tests, he told the DCNF. He wondered: how could the Army predict whether he would or would not live longer as a result of the malpractice he experienced at the hands of military doctors?
“Bodies are cheap,” Stayskal, now 41 and dealing with Stage IV lung cancer, told the DCNF.
A controversial Supreme Court ruling that laid the groundwork for what is known as the Feres Doctrine barred Stayskal from filing a medical malpractice claim. The Feres Doctrine bars military malpractice lawsuits on the grounds that the government shouldn’t be held responsible for all injuries or deaths that occur among active duty servicemembers.
Stayskal filed a claim for $20 million, according to the document seen by the DCNF, and his wife filed a separate claim for the same amount. The Army denied his wife’s claim on the grounds that third party claims are not allowed, according to the letter.
New York oncologist Richard Hirschman wrote in an expert opinion that Stayskal’s cancer would likely have been diagnosed at Stage I, having a high survival rate, had it been identified in January 2017, according to The Washington Post.
“The fact that he went six months without a diagnosis allowed that cancer to grow and very likely advanced its stage,” Dr. Michael Pritchett, the pulmonologist who first accurately diagnosed Stayskal, told NBC News.
“We find it highly suspect that there’s definitive medical proof that highlights that this would’ve been properly diagnosed at Stage I, and that it would not have had the same outcome,” former Green Beret Daniel Elkins told the DCNF, speaking for the Special Operations Association of America, which he helped to found.
‘Feels Like A Settlement’
As compensation, Secretary of the Army Christine Wormuth in March offered Stayskal a $600,000 hardship stipend through a “special discretionary authority,” the maximum amount permitted through the military malpractice system’s pain and suffering allowance, according to the Washington Post and Stayskal.
Wormuth said she recognized Stayskal’s role as “the catalyst for the change in the law” and “the fact that the standard of care was not met,” according to the Post.
Stayskal told the DCNF the offer feels like a settlement — a way to quietly acknowledge damage done but avoid opening the floodgates for more malpractice claims that could cut into the Pentagon’s budget.
“The thing that really doesn’t make sense is the lump sum for pain and suffering – it almost feels like a settlement,” he told the DCNF.
The DOD appeals board allows for an appeal to the military services not involved in the initial determination — the Navy and Air Force, in Stayskal’s case — and the Defense Health Agency (DHA). Stayskal told the DCNF he began the appeal process in early April 2023, but he and his attorney, Natalie Khawam, remain skeptical that a board comprised of DOD agencies could truly remain impartial.
“The incentive to cover up mistakes is too great,” Stirling said. “The motive is to save the military as an entity — and the doctors who made the errors — embarrassment and public humiliation.”
Khawam told the DCNF she and Stayskal met with North Carolina Republican Rep. Richard Hudson and Californian Republican Rep. Darrell Issa on Tuesday to explore the possibility of future legislation.
Stayskal devoted weeks out of his year to achieve the passage of his namesake bill with support from Hudson and Republican Sen. Markwayne Mullin of Oklahoma. Now, he faces the possibility of doing it all over again.
“I’m tired,” he told the DCNF. The seven-hour drive from his home in North Carolina to Washington, D.C., and time spent meeting with congressmembers and stakeholders subtracts precious time he could spend with his wife and daughters, he said.
When reached for comment about future legislative plans, Mullin declined to comment and Hudson and Issa did not respond.
As of March 28, the Army has received 202 claims under the Richard Stayskal Act requesting a cumulative $1.75 billion in damages, according to data provided to Bloomberg. Of those, the Army Claims Service has adjudicated 155, denying 144 either on the merits or on procedural grounds.
The Army said it had agreed with 11 complaints and approved $3.28 million in payouts, the Post reported.
The Army was not able to provide updated numbers as of posting time.
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