SFC Richard Stayskal Military Medical Accountability Act of 2019

The Stayskal Act (10 U.S. Code § 2733a) establishes an administrative, “non adversarial,” process for service members to file claims for personal injury or death caused by medical malpractice committed by a Department of Defense (DoD) health care provider.

Who can file a claim under the Stayskal Act?

●A member of a uniformed service; or
●An authorized representative on behalf of a member who is deceased or otherwise unable to file the claim due to incapacitation.
32 C.F.R. § 45.3(a).

Who counts as a member of a uniformed service?

Member of a uniformed service:

●A cadet or midshipman from the military academies. 32 C.F.R. § 45.3(a).
●A reserve component member in connection with personal injury or death that occurred while the member was in a Federal duty status. 32 C.F.R. § 45.3(a)(2).
●National Guard of the United States while on a period of Federal duty status. 32 C.F.R. § 45.3(a)(2).

DoD Healthcare Provider:

●A member of the uniformed services
●DoD civilian employee
●Personal services contractor of the Department (under 10 U.S.C. 1091)
Who is authorized by DoD to provide health care services. 32 C.F.R. § 45.5(c).

Acting Within the Scope of Employment:

●The provider was acting in furtherance of his or her duties in the MTF. 32 C.F.R. § 45.5(d).

The Standard of Care:

●A duty to exercise the same degree of skill, care, and knowledge ordinarily expected of providers in the same field or specialty in a comparable clinical setting.
●The standard of care is determined based on generally recognized national standards, not on the standards of a particular region, State or locality.
●However, standard of care in the military context may be impacted by the particular setting and the availability of resources in that setting.
32 C.F.R. § 45.6(b).

A claimant may present evidence to support what the claimant believes is the standard of care relevant to the care involved in the claim. 32 C.F.R. § 45.6(d).

Third Party Claims:

●Third-party claims are prohibited, including any derivative claims or claims made by individuals who are not the direct injured party but are affected by the harm to a member of the uniformed services.
●For example, claims from family members or survivors resulting from the personal injury or death of a service member are not allowed. 32 C.F.R. § 45.3(b).

***The Act does not allow servicemembers to sue in federal court.

Relationship to military and veterans’ compensation programs:

●Federal law provides a comprehensive system of compensation for military members and their families in cases of death or disability incurred in military service for all causes of death or disability, whether due to combat injuries or not. 32 C.F.R. § 45.1(b).
●The Stayskal Act applies to cases of personal injury or death caused by medical malpractice incurred in service. 32 C.F.R. § 45.1(b).
●A claim under the Stayskal Act will have no effect on any other compensation the member or the member’s family is entitled to under the comprehensive compensation system applicable to all members. 32 C.F.R. § 45.1(b).

However, if the U.S. Government makes a payment for harm caused by malpractice, this payment reduces the potential damages able to be awarded here. 32 C.F.R. § 45.1(b).

Relationship to Healthcare Resolutions Program:

●The medical malpractice claims process under this part is separate from the Military Health System Healthcare Resolutions Program.
●The Healthcare Resolutions Program is not involved in legal proceedings, compensation matters, or the adjudication of claims under this part.
●Any member of the uniformed services can engage the Healthcare Resolutions Program to address non-monetary aspects of his or her belief that he or she has been harmed by medical malpractice by a DoD health care provider.
●Because it is not involved in claims or legal proceedings, the Healthcare Resolutions Program disengages when a claim is filed by a service member or his or her representative.  32 C.F.R. § 45.1(c).

What does the Stayskal Act say?

The Secretary of Defense may allow, settle, and pay a claim against the United States for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a Department of Defense health care provider. 10 U.S. Code § 2733a(a).

●Against the United States
●For personal injury or death
●Incident to service of a member of the uniformed services
●Caused by the medical malpractice
●Of a DoD health care provider

Elements of a Professional Negligence Case:

1. Duty
2. Breach
3. Causation
4. Damages

Statute of Limitations:

●Occurrence based and/or discovery based.
●SOL is usually 2 years from the relevant date.
●Example based on date of discovery: latent disease

1. A woman undergoes a routine mammogram that reveals a suspicious lump. However, her doctor fails to inform her about the result or suggest follow-up tests. Several months later, the woman begins to notice pain and swelling in her breast and consults another physician, who diagnoses her with breast cancer.
2. The SOL begins on the date a reasonable person would have discovered — or had reason to suspect — that something was wrong.
3. Occurs when a reasonable person, even with due diligence, would not have discovered the injury right away.
4. The injured party cannot ignore signs of injury and is expected to follow up with medical visits.Another discovery example: continuing wrong
   Example: Failing to prescribe the proper medication for diabetes over an extended period.Applies when a doctor continues to treat the patient after an initial act of negligence, and the ongoing treatment conceals the negligence or prevents the patient from discovering it sooner.
   The SOL is two years from the date the doctor-patient relationship ends or the date of discharge.
5. Requirements:
   ■The conduct must involve more than a single act of negligence.
   It must be of a continuing nature — a repeated or ongoing failure to meet the standard of care.

Submission Requirements:

The claim must:

1)Be in writing. 32 C.F.R. § 45.4(a).
2)Be signed by the claimant or authorized representative. 32 C.F.R. § 45.4(a).
3)Include the factual basis for the claim and identify the conduct allegedly constituting medical malpractice. 32 C.F.R. § 45.4(b)(1).
4)Include a demand for a specified dollar amount. 32 C.F.R. § 45.4(b)(2).
Additionally:

●If the claim is filed by an authorized representative, they must file an affidavit from the representative affirming his/her authority to file on behalf of the claimant. 32 C.F.R. § 45.4(b)(4).
●If the claimant is not represented by an attorney, they must file an affidavit from the claimant affirming that the claimant consulted with a health care professional who opined that a DoD health care provider breached the standard of care that caused the alleged harm.* 32 C.F.R. § 45.4(b)(5).
●If the claimant is represented by an attorney, you must file:
1)An affidavit from the claimant affirming the attorney’s authority to file the claim on behalf of the claimant; 32 C.F.R. § 45.4(b)(3).
2)An affidavit from the attorney affirming that the attorney consulted with a healthcare professional who opined that a DoD health care provider breached the standard of care that caused the alleged harm.* 32 C.F.R. § 45.4(b)(5).
*Unless the alleged medical malpractice is within the general knowledge and experience of ordinary laypersons

Where are the claims submitted?

Army: File the claim with either:

●The closest Office of the Staff Judge Advocate —or—
●The Center Judge Advocate of the medical facility in question —or—
●The US Army Claims Service (4411 Llewellyn Avenue; Fort Meade, Maryland 20755; ATTN: Tort Claims Division)
Navy: Mail the claim to:

●The Office of the Judge Advocate General, Tort Claims Unit, 9620 Maryland Avenue, Suite 205, Norfolk, Virginia 23511-2949. Additional instructions are available at https://www.jag.navy.mil/​.
Air Force: File the claim with either:

●The Office of the Staff Judge Advocate at the nearest Air Force base —or—
●The AFLOA/JACC, 1500 W Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762. POC: Medical Law Branch, AFLOA/JACC 240-612-4620 or DSN 612-4620.

For more information on Military Medical Malpractice claims send an email to William (SEAL) Brown Esq. at: William.Brown@ParlatoreLawGroup.com