DoD Medical Malpractice and Case Law leaves Special Forces Soldier Months to Live

As a result of Womack Military Medical Center’s failure to properly diagnose a malignant tumor on Sergeant First Class Richard Stayskal’s lung and through miscommunications with DoD-approved civilian medical facilities, the 36-year old, active-duty U.S. Army Special Forces has terminal cancer and will leave a wife and two young children without recourse to sue the military as a result of a 1950’s case which established that a service member could not sue the military for malpractice.

Attorney Natalie Khawam and her firm, The Whistleblower Law Firmproudly represents Sergeant First Class Richard Stayskal and his family in this matter. Khawam, founder of the firm, has very strong feelings about protecting the rights of the military men and women that fight for the freedom of the citizens of the United States. Khawam in response to the client’s plight said, “We will zealously defend his rights as he proudly defended our rights in combat.   As a result of the military medical system’s failure to diagnose and treat a malignant tumor on Sergeant First Class Richard Stayskal’s lung, the 36-year old U.S. Army Special Forces soldier has terminal cancer with months to live and will leave behind a wife and two young children.”

In 1949 the United States Supreme Court ruled in Brooks v. United States. The Supreme Court was faced with the question of whether “a member of the United States military can make a claim against the Government under the Federal Claims Tort Act (FCTA).” The Court held that because of the language, framework and legislative history of the FCTA, it was required to conclude that the Plaintiff’s had a claim.

However, this is not the case today. Not more than a one-year-later in 1950, the United States Supreme Court was faced with the same question in Feres v. United States. The Supreme Court held that the federal government could not be held liable under the FTCA (the body of statutes that permits lawsuits against the United States for the tortious conduct of its employees) for injuries to members of the armed forces arising from activities incident to military service (which can include the negligence of both military personnel and civilians)— establishing what is now known as “the Feres Doctrine”.

The reasoning underlying the Feres doctrine is based on the premise that military service members are routinely injured in the course of duty when following the orders or directions of their superiors.  Some examples are when medical care is rendered in a combat situation or when emergency care is needed in a training environment in which a service member is unexpectedly injured, and military providers need to make a split second call in enormously stressful conditions. It is understandable why Feres would apply in those circumstances and why service members’ should not be able to sue a military provider for treating someone in triage situations arising in combat or training.  These situations present a tough choice in a tough situation and the Supreme Court did not want to compromise the ability of military providers in those situations to make fast (and potentially lifesaving) decisions about care at the sacrifice of following the appropriate standard of care.

However, since its advent, this judicially created legal doctrine has been extended to cover situations that fall outside of what the initial reasoning provided by the Supreme Court in Fereswas.  The doctrine has been utilized by the branches of the military to shield negligent medical care given by military providers. This is medical care in which there is no element of “military judgment” at play. The only difference between a military provider and a civilian provider in these circumstances is the military provider wore fatigues to work that day, and his or her patients do not (as a practical matter) have a choice about accepting their services. The progeny of cases that have developed after Feresillustrates how this doctrine has been the primary restraint on service members’ ability to sue the United States if they are victims of medical malpractice.

This doctrine has effectively barred hundreds of service members and their family any chance of recourse for receiving negligent medical care that is given by a government provider when the service member is on active duty, regardless of whether or not the injury was the result of combat service or deployment. This is right that all citizens are provided under the FTCA— except service members. Meanwhile, the government employees who are responsible for the egregious negligent acts get to hide behind the protection of sovereign immunity provided by the Feresdoctrine.

Richard Stayskal suffered a gunshot wound to the chest while deployed in Iraq. Following, his recovery and after joining Special Forces, he was selected to attend Special Forces Under Water School and Combat Dive Qualification Course. During the required school physical examination on January 27, 2017, at the Womack Army Medical Center in Fort Bragg, Dr. Williams, the civilian radiologist failed to identify an abnormally large tumor midline his right upper lobe.

While, attending Dive School around the end of March 2017, Sergeant First Class Stayskal struggled with difficulty breathing through the beginning of the rigorous course and by April 2017, he was coming home from dive school. The beginning signs of things going wrong; SFC Stayskal began to wheeze and have difficulty breathing when lying flat on his back.  He continued to express his concern about these symptoms to his wife and work. Finally, he could not take it anymore due to the growing symptom of what felt like a feeling of going numb in his whole body and blurred vision.

He then told his work he was off the medical clinic to be seen.  On May 15, 2017, Sergeant First Class Stayskal was taken to the ER from SWCS Clinic by ambulance where he was brought in on a gurney and then told and placed in the waiting room for upwards of 1 hour plus minutes with difficulty breathing and chest pain.  SFC Stayskal was told he needed the ambulance due to being assessed by a current Special Forces Medic (18D); the medic noticed SFC Stayskal was on the verge of passing out due to lack of oxygen.  After the duration of waiting in the waiting room, he finally had vitals done in preparation to be seen in the ER.  During vitals, SFC Stayskal explained his symptoms to the nurse, and he was told it was highly unlikely that anything could be wrong with him due to his age.  The nurse disregarded all his symptoms when asked why he was there to be seen.

The ER doctor at that point completed an x-ray and didn’t find anything but thought it was likely that it was walking pneumonia. The ER doctor also noted during a retrospective reread of the original CT scan completed in January by Dr. Williams, that needed to be reread and that something was indeed present at that time of the CT Scan. Upon review of the January 27, 2017, CT scan the ER Doctor had another Radiologist read the CT Scan, and he revealed that there indeed was a 2.8 x 2.2 cm tumor on his right upper lung, which Dr. Williams failed to identify in January.  For no apparent reason, no further action was taken.

SFC Stayskal was sent home and told there would be a consult put in for him to see the pulmonary department. The soonest appointment for a new patient was approximately 29 days out.  SFC Stayskal called to try and get off the military facility to for care in a private sector, but he was informed that unless the appointment was more than 30 days, he wasn’t allowed to be seen off post.

Before being seen on May 22, 2017, at the Pinehurst ER, Sergeant First Class Stayskal called the pulmonary clinic on Womack and begged to be seen, he was told that they could not get him in and there was nothing that they could do for him. They advised him that he needed to continue to go the ER until his appointment date. Due to being a new patient, he was not a priority. According to what Womack told him current patients had priority over new patients.

Prior to the SFC Stayskal’s May 22nd visit to the ER, he called Tri-Care to try and do anything he could to be seen anywhere that would allow him.  Again, he received the same answer. If it was less than 30 days, he had to be seen on post.  Also, unless the Doctor would release him with the referral off post, there was nothing Tri-Care could do for him.

On May 22, 2017, Sergeant First Class Stayskal had problems breathing at work and called his wife to discuss his growing concerns about his condition.  Again SFC Stayskal called the WOMACK Pulmonary clinic and begged to be seen, but unfortunately, he was met with the same response from the first time. So, he called his wife to notify her that he was being driven to the Moore Regional ER in Pinehurst because his Chain of Command was not willing to have him waiting in the waiting room again.

Upon arrival, Richard was practically unconscious, barely coherent, slouched over unable to keep his self-upright. His wife woke him and assisted him into a wheel chair where he was brought in and triage and put in a room right away. The ER doctor completed an x-ray, EKG, labs to try and see what the issue was.  At this time he had passed out completely, and his wife notified the staff, and he was immediately moved to a room. Not suspecting a tumor or that the lung was collapsing there was no CT completed. They sent him home with prednisone, which helped the acute temporary symptoms as well as conducting a breathing treatment.

The attending ER physician at Moore Regional Hospital diagnosed Sergeant First Class Stayskal with potential asthma/possible walking pneumonia. Around the first of June Sergeant First Class Richard Stayskal began to cough up a teaspoon size of blood, in which each day it got worse with more sizeable amounts of blood being coughed up continuously all day. On June 15, 2017, his wife made him go to the ER again at Moore regional to be seen for coughing up blood. Sergeant First Class Stayskal waited in Moore Regional Hospital for five hours before leaving without being seen.

At work, SFC Stayskal was approached by his Chain of Command to see if they could help. SFC Stayskal accepted the help and asked if his Commanding Officer could help to have him seen sooner. Major Burton immediately put his uniform on and went down to WOMACK and consulted the Pulmonologist, Dr. Boyer.  Major Burton was able to have SFC Stayskal released to be seen off post.  Unfortunately, it still took upward to a week plus for the correct referral to be released and sent to Tri-Care. By the time SFC Stayskal was given the referral and the okay to be seen off post and schedule the appointment it was upwards off two weeks before he scheduled the appointment. Then he still now had to wait until the appointment in Pinehurst till June 22.

The fumble by the WOMACK medical system and Tri-Care added on an additional two weeks to this life-threatening and continuously growing problem.  This in SFC Stayskal’s case was the most crucial and valuable time for the Army Medical System to act and take the utmost concern with our soldiers. A situation that was expressly presented to may personnel within the medical system.  SFC Stayskal, in fact, pleaded with Tri-Care over the phone to let him be seen.  SFC Stayskal begged the Pulmonology Department to let him be seen.  Both times he was denied the opportunity to be seen by any specialty personnel.  AFC Stayskal is 36-year-old within the Special Forces Community.  SFC Stayskal who does not go to sick call; a soldier who is trained to deal with and keep his pain and agony to himself.  Then when he recognizes a serious problem that he can no longer deal with, he recognized the situation more than likely to due to his background in cross training with 18D’s (Special Forces Medics); he was not taken seriously and was not afforded the open door policy of bringing a problem to attention.  These continuous delays in fact added to the growing life-threatening situation within SFC Stayskal’s body.

Sergeant First Class Stayskal saw Pinehurst Pulmonologist Dr. Pritchett on June 22, 2017, where a PFT (pulmonary function test) was completed along with a CT scan, which concerned Dr. Pritchett. On June 27, 2017, Dr. Pritchett completed a biopsy of concerning area, which revealed a type of non-small cell adenocarcinoma. Upon completion of the biopsy, Sergeant First Class Stayskal’s wife was notified while he was still waking up that he had lung cancer. This life-changing news that could have been known five months earlier: This resulted in his immediate staging being considered Stage III-A. Sergeant First Class Stayskal had lung cancer, which after gene testing we found out that it is considered ALK, which is a gene mutation.

On July 5, 2017, Sergeant First Class Stayskal underwent three rounds of radiation before Dr. D’Amico said no more radiation because surgery was an option after three rounds of chemo. Starting July 17th, he began his first round of Chemotherapy, which consisted of Cisplatin and Alimta together. 2nd round was August 7th, and the 3rd and final was August 28th.

On October 23, 2017, Sergeant First Class Stayskal underwent a cardiothoracic lobectomy, mediastinoscopy, thoracotomy, and bronchoscopy. During the procedure, the pathologist tested his lymph nodes and didn’t find any activity during the thoracotomy. They were able to remove just the right upper lobe.

After surgery, he spent five days at Duke, before being released to recover at home and begin pulmonary rehab. Considered at that time to be cancer free.

Over Christmas Sergeant First Class Stayskal began to cough more, and his health seemed to be declining due to being unable to eat and drink liquids without being in tremendous amounts of pain.  He also noticed that he was rapidly losing weight due to his inability to consume food and liquid.  At the beginning of January Sergeant First Class Stayskal went to the Moore Regional ER where he was seen right away with again difficulty breathing, they completed again an x-ray, and all the works, after knowing his cancer history. Also noticing something was wrong the left side of his neck had begun to swell rapidly and very largely.  It would be compared to a fist placed under his skin running from his jawline to collarbone.

This was overall a physically painful time due to the growing tumors.  They found a mass on his spleen, not sure what it was they sent him down for an ultrasound where they determined that it could be a cyst or a tumor, only at PET would tell. He completed a PET scan on January 16th, which later resulted in his cancer spreading spread to the lymph nodes in his neck on the left side, spleen, liver, ilium crest (butt bones), spine and right hip joint.

Beginning January 22, 2018, Sergeant First Class Stayskal began taking Alectinib. Which is the first line targeted therapy for ALK and now is currently stage IV and on palliative care. In February Sergeant First Class Stayskal was again seen in the ER at Moore Regional and diagnosed with pneumonia.

Doctor Louis Leskosky M.D., a radiologist with thirty-five years of experience, characterized Dr. Saul-Rothman’s misdiagnosis as:

“A failure to properly diagnose a potentially life-threatening right upper lobe pulmonary nodule (known as cancer) that measured over 1.5 cm in size, non- calcified, by modern diagnostic computed tomography. A CT can easily demonstrate nodules as small as 2 mm or less, this constitutes professional malpractice. As the lesion is now life threatening and could have been surgically removed for a cure had proper diagnosis occurred, this may result in wrongful death.”

Military healthcare physicians, like Dr. Saul-Rothman are protected from malpractice suits.  Her apparent gross negligence and failure to perform her duties as a competent radiologist sentenced Sergeant First Class Stayskal to death, destroyed a family and levied unimaginable suffering and pain on Sergeant First Class Stayskal, his wife and their nine and eleven-year-old daughters.

The Whistleblower Law Firm is prepared to challenge the Constitutionality of existing law, which bars a service member from suing the federal government for malpractice. When asked about the existing law, Khawan said, “Every day and night our families are safe, and our rights are protected because of the sacrifices of Sergeant First Class Richard Stayskal. We owe him and our Veterans the best care and at the minimum equal rights, especially when they’ve been wronged and harmed from the military hospital’s gross negligence and substandard care.”

Attorney Natalie Khawam is committed to raising that shield of freedom and rights for Sergeant First Class Richard Stayskal and for all the brave men and women who proudly fought for our rights and freedom. This outdated law has a profound impact on the men and women from the military that have suffered from medical malpractice and the Whistleblower Law Firm is going to challenge this law so members of the military will hopefully never have to face this form of injustice again.

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