The Washington PostDemocracy Dies in Darkness

A Green Beret’s cancer changed military malpractice law. His claim still got denied.

After an Army hospital failed to alert Richard Stayskal to his lung cancer, Congress created a new malpractice system in his name. It hasn’t helped him.

Richard Stayskal at his home in Aberdeen, N.C. An Army hospital failed to recognize a cancerous tumor in his lung, allowing it to grow and spread. (Melissa Sue Gerrits for The Washington Post)
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When he was diagnosed with advanced lung cancer in 2017 at the age of 36, Richard Stayskal was stunned. The Army Green Beret had undergone chest scans earlier that year for dive school and was told the results were normal. Then he discovered that his military hospital had misread the exams and failed to recognize the early-stage tumor in his upper right lung.

Stayskal wanted to sue for malpractice. But another shock awaited him: A decades-old Supreme Court decision banned military malpractice lawsuits, declaring that the government was not liable for injuries to service members on active duty. So Stayskal lobbied Congress — and had a new law named in his honor. The Sgt. First Class Richard Stayskal Military Medical Accountability Act, passed in 2019, allows troops to file claims with the Defense Department alleging malpractice by military health-care providers. The process also allows them to seek damages for economic losses, pain and suffering.

But Stayskal, now a master sergeant who lives in Aberdeen, N.C., got word this month that not even he can win in the tort claims system he helped create. On March 15, the U.S. Army Claims Service wrote to one of his attorneys, denying Stayskal and his family $40 million for injuries resulting from the failure to alert him of his growing cancer. The Army’s rejection letter said there was “no evidence that [Master Sgt.] Stayskal’s prognosis or chance of survival was adversely affected by the delay in the diagnosis of lung cancer.”

“I definitely felt like this should have been an easy decision, a slam-dunk,” said Stayskal, 41, whose cancer has progressed to Stage 4. “If my claim doesn’t get paid, that sets the tone for every service member who files a claim after me.”

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Stayskal, who plans on appealing to the Defense Health Agency, did win one concession. Earlier this month, the Army Claims Service notified him that Army Secretary Christine Wormuth intends to use a “special discretionary funding authority” to pay him $600,000. That dollar figure is equal to the maximum amount allowed for pain and suffering damages in the military’s medical malpractice system.

The Army Claims Service said Wormuth wants to offer him the payment because the military recognizes his status as “the catalyst for the change in the law” and “the fact that the standard of care was not met.”

When The Post asked the Defense Department to clarify the terms of the offer, a senior Army official said Wormuth was only “considering” making a payment of an unspecified amount to Stayskal.

In a letter last year to his legal team, the Army said its standard-of-care lapse does not constitute liability under federal law because the Army’s missed diagnosis didn’t change Stayskal’s treatment or prognosis.

Though Stayskal said he is grateful for any payout — he and his wife have two daughters, one in the eighth grade, the other a high school sophomore — he also believes Wormuth’s potential offer is an unwitting acknowledgment that the military wronged him.

“I really believe Secretary Wormuth is a sincere person,” he said. “But what she gave me feels like this quiet whisper that says, ‘We agree, we know you’ve been wronged and are deserving.’”

The $600,000 is also far less than the amount the family sought. Stayskal and his wife, Megan, who filed separate claims on Jan. 1, 2020, each sought $20 million. Her claim also was denied.

“The money I sought in the claim is a representation of the wrongdoing and substandard care that the military should be acknowledging,” Stayskal said. “But my oncologist says this will be what ends my life. So, my wife and children will also need the money. And when I leave the military, I’ll lose my active-duty military insurance, and will need the money again for some of my medical bills and hospice care.”

The Army said in a statement Monday that it has received 202 medical malpractice claims seeking a total of $1.75 billion. It added that 155 of those claims have been resolved, with 144, or 93 percent, being denied, and 11 receiving settlement offers. The Army said about $3.28 million has been paid or is pending payment. The remaining cases are still under review.

One reason for the high percentage of denials is that the Army started with claims that had “procedural issues” before focusing on cases requiring more intense investigation, said Karen Carlisle, the Army’s director of soldier and family legal services in the judge advocate general’s office.

One of Stayskal’s attorneys, Natalie Khawam, said she and her law firm partner Alan Ripka represent at least 150 service members in the Army, Navy and Air Force who have filed malpractice claims in the system that the Stayskal legislation helped establish.

So far, Ripka said, about a third of their firm’s claims have been denied. The others are still waiting for decisions. The firm has had a small “handful” of victories — the family of an Army soldier who died of cancer won a “multimillion-dollar” settlement last year.

The Defense Department’s “determination to deny Stayskal’s claim with such irrefutable evidence of malpractice has exposed its failure to be accountable to our service members and their families,” said Khawam, who pressed to get Stayskal’s namesake bill passed and is still pushing Congress to improve the system.

Coughing up blood

Before his cancer, Stayskal’s life was nearly ended by an enemy sniper in Iraq.

It was April 6, 2004, and Stayskal, about a week from turning 24, was deployed as a Marine corporal to Ramadi. It would be a brutal Tuesday for the Marines: That day, Sunni Muslim insurgents killed about a dozen Marines in Ramadi, according to a Washington Post dispatch.

Stayskal was nearly one of them. He and several other Marines were stationed on the city’s outskirts, monitoring for insurgents planting roadside bombs, when they come under attack. He took cover by some irrigation pump houses, then fired back. But his ammunition was running out. He got on the radio and begged for support.

“I was screaming over the radio that we’re going to die here if no one comes for us,” Stayskal said. “But we kept getting denied.”

All he remembers seeing next is the barrel that peeked out over a bush. The sniper’s round hit him in his left arm and then pierced his left lung. A Navy corpsman rushed to his aid and applied dressings. Finally, a Marine Huey helicopter pushed back the enemy fighters, and Stayskal was eventually driven to a combat hospital.

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The next year, he was honorably discharged. But by 2006 he had re-enlisted, this time in the Army. He made his way into the Special Forces and was assigned in 2015 to the 1st Special Warfare Training Group (Airborne) at Fort Bragg in North Carolina.

In January 2017, he was selected to attend a combat dive school, which required a chest X-ray. He got one on Jan. 13, 2017, at Womack Army Medical Center at Fort Bragg. The results, he believed, were normal.

But one of the dive school doctors told Stayskal that — given the damage to his left lung in Iraq — he needed a more thorough evaluation of his chest. So, on Jan. 27, 2017, he underwent a CT scan at Womack.

“They said, ‘We’ll call you if there’s anything to notify you about,’” Stayskal said. “And I didn’t hear a word about it after.”

He was cleared for dive school. But soon he found he could no longer run three miles without struggling. He failed a test in which his hands and feet were tied in the water because he couldn’t seem to breathe. He was wheezing. Then, he started coughing up blood.

About five months later, he was rushed to Womack’s emergency room. Another X-ray was taken and pneumonia was raised as a possibility. He said one doctor, though, told him that he’d rechecked his CT scan from January and thought there was “something” that needed further investigation. He was told to see a pulmonologist.

By June 2017, as he waited to get an appointment with a military lung doctor, he kept coughing up more blood. Perhaps, he thought, the symptoms were linked to lead levels at a base gun range. Maybe he had severe bronchitis or pneumonia.

“I felt like I was being waterboarded,” he said. “There were times I would carry a cup around because I was spitting up blood so much.”

He got permission to go to a civilian pulmonologist who could see him faster, he said. In late June of that year, he got a chest scan and a biopsy at the civilian hospital. The diagnosis: advanced lung cancer.

At one point, he said, his new civilian doctor asked him, “Why didn’t you come in earlier?”

“I said, ‘What are you talking about?’ He was like, ‘Your scan in January says you had something that points to cancer,’” Stayskal recalled. “We were like, ‘Are you kidding me?’”

Altering the ‘Feres doctrine’

So many attorneys told him he had no legal recourse. They pointed to the 1950 Supreme Court decision known as the “Feres doctrine.” When Army Lt. Rudolph Feres, a World War II veteran, died in 1947 in a barracks fire in New York, his widow sued the military for negligence.

But when her case reached the Supreme Court, she was denied. The government, the justices declared, is not liable “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”

The passage of the Stayskal Act was the first genuine dent in the Feres doctrine in more than seven decades.

Stayskal believed it gave him a decent shot at proving malpractice. His lawyers filed expert opinions from doctors supporting his case.

New York oncologist Richard Hirschman wrote in his report that Stayskal’s mass would have been diagnosed as Stage 1 if it had been caught in January 2017, and he “would have had approximately an 81% chance of a 5-year survival rate which is almost the same thing as cured.”

But the Army disagreed.

“The experts have determined,” the Army Claims Service wrote in April 2022, “that had MSG Stayskal’s cancer been diagnosed anytime between January 27 and June 27, 2017, his treatment and prognosis would have been essentially the same.”

Ripka, one of Stayskal’s attorneys, fired back, saying the delay allowed the disease to progress and “deprived him of the opportunity to undergo curative surgery.”

In an interview, former congresswoman Jackie Speier (D-Calif.), who introduced the Stayskal bill, said she was “crushed” that his claim had been denied, forcing him to appeal.

“The good news is Richard Stayskal is still alive and hopefully he has a long life in front of him,” Speier said. “But we don’t know that — and we do know that there was gross incompetence.”