On July 13, 2024, Congressmen Darrell Issa, Richard Hudson, Michael Waltz and Jimmy Panetta joined together to introduce H.R. 4334, the Healthcare Equality and Rights for our Heroes Act (the HERO Act).

This Act will grant service members, who are victims of medical malpractice in a Department of Defense (DoD) medical treatment facility the right to take their claim to District Court. Currently, this bipartisan legislative bill has thirty-one (31) cosponsors.

“The HERO Act” is about more than opening an avenue to the courts,” stated Representative Issa. “It’s about recognizing that service members who are victimized by medical malpractice in a DoD facility are deserving of the opportunities to pursue the kind of justice that is currently denied to them.”

Currently, if an active-duty service member experiences medical malpractice at a DOD medical treatment facility, the available opportunities to seek justice are extremely limited.

Service members, under the auspices of the Sergeant First Class (SFC) Richard Stayskal Military Medical Accountability Act, included in the National Defense Authorization Act (NDAA) of 2020, may file a petition with an in-house DOD panel, but that legal process has an extremely poor rate of success.

When the act was included in the 2020 NDAA, “it authorized $400 million over the ten years for the DoD to pay military medical malpractice claims made after January 2017.”

SFC Stayskal, an Army Green Beret, was diagnosed with terminal lung cancer at the age of 36 in June 2017. The Army Green Beret had undergone chest scans earlier that year (at Womack Army Medical Center at Fort Bragg, North Carolina) for dive school and was told the results were normal.

Then, SFC Stayskal later discovered that his military hospital had misread the exams and failed to recognize the early-stage tumor in his upper-right lung.

Of the 597 total claims filed under this law, only twenty (20) claims, or less than three (3%) percent, have been approved for payment. “The law that gave hope to Rich Stayskal and hundreds of military families,” stated Rep. Rich Hudson, “who have been harmed by medical negligence has been outright ignored by the DOD.”

In March of 2023, the Department of Defense denied a medical malpractice claim from Master Sergeant Richard Stayskal, the soldier whose name is attached to legislation that allows service members to file such claims against the Pentagon. Read more online at https://www.armytimes.com/news/your-army/2018/11/07/this-green-beret-is-battling-cancer-and-the-government-after-army-medicals-gross-malpractice/.

One of the major problems with the SFC Richard Stayskal Military Medical Accountability (MMA) Act is that ONLY spouses of active-duty service members, along with any other person who incurred medical malpractice within a DoD medical treatment facility, may address their injuries before a court.

However, the SFC Richard MMA Act does not grant these legal rights to those individuals who are currently serving on active duty and sacrificing for the Nation. “Congress has previously worked to correct this obvious wrong within our system, but it isn’t fixed yet,” explained Issa. “This time, we’re going to set this right.”

“Our nation’s servicemembers sacrifice so much to protect our country and freedom,” said Congressman Michael Waltz. “It is unacceptable for them to slip through the cracks when it comes to the medical care they deserve, especially by the Department of Defense.”

An existing 73-year-old law, the Feres Doctrine, is a law that protects the Department of Defense (DoD) from servicemembers suing them for medical malpractice.

In a brief summary: “The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.”

The Feres Doctrine, named after Lieutenant Rudolph Feres who died in an Army barracks fire in 1947, has long faced criticism from service members, military families, and veteran service organizations, who argue that the Supreme Court precedent sets a double standard.

In a brief summary: This double stand is: One set of rules for civilians and another for service members. Under the Feres Doctrine, if a civilian and a service member went to the same hospital and received care for the same injury and malpractice occurred in both cases: the civilian could file a claim for damages against the government, but the service member could not.

The case of a Maryland Air National Guard veteran, Ryan Carter, catastrophically injured by military-hospital surgery, provides a perfect opportunity for the U.S. Supreme Court to end the Feres Doctrine which blocks military members from bringing claims against the federal government.

In April 2018, National Guardsman Carter was paralyzed during what should have been routine back surgery, and he was left with no legal recourse due to the Feres Doctrine. Carter’s administrative and legal claims under the Federal Tort Claim Act (FTCA) were dismissed by lower courts.

My Opinion: The HERO Act would allow those servicemembers who suffered medical malpractice at a DoD facility to file the appropriate claims and ensure that they are efficiently assessed by the DoD.

I believe that such an enhancement to the claims process is necessary for our servicemembers and is deserved for their service. It provides them with a “fair shot” at the justice they deserve!

BioSketch: John Plahovinsak is a retired 32-year Army veteran, who served from 1967 to 1999. He is the Disabled American Veterans (DAV) Department of Ohio’s Hospital Chairman and Adjutant of Chapter #63 (Clermont County). He can be contacted at: plahovinsak@msn.com.