Military members fighting for right to sue for malpractice at the hands of Department of Defense doctors

SAN ANTONIO – They protect our freedoms and fight for our rights. However, our servicemen and women are being denied a right that we, as civilians, all have — the right to sue the federal government for military medical malpractice.

Two veterans met with KSAT Investigates to share their stories and their fight to help others get the justice they have been denied.

Dez Del Barba

In 2019, then-college senior Dez Del Barba followed his dream of service. He came from a family of service members, so it was a natural next step.

“I applied for Officer Candidate School. I got accepted, and then I went to Fort Benning to do basic combat training,” Del Barba said.

He was only there for a few weeks, but that would mark the beginning of how Del Barba’s life would be forever changed.

“I know in my company there was a little bit over 50 that had strep,” he said.

According to a spokesman for Fort Benning, now renamed Fort Moore, 61 trainees tested positive for Strep A in January and February of that year. Del Barba was one of them.

Doctors on base tested him for strep throat with a rapid and 24-hour test.

“Rapid one came back negative. And then, following the next day, the 24-hour one came back positive. However, nobody notified me,” Del Barba said.

His drill sergeants weren’t informed either.

Del Barba’s symptoms worsened, and he went to the base hospital. He said doctors there never checked his strep results and sent him home with cough medicine. The whole appointment lasted only three minutes.

That was on a Saturday.

“Early Monday morning, I basically started going into, like, shock,” Del Barba said.

When left untreated with the proper medications, Del Barba’s strep throat infection worsened.

“It turned into a flesh-eating disease called necrotizing fasciitis,” he said.

According to the CDC, “Streptococcal necrotizing fasciitis is a rare infection that typically occurs after trauma, sometimes minor or unapparent trauma, and surgery. Necrotizing fasciitis may also occur as a superinfection complicating varicella lesions.”

Then-21-year-old Del Barba slipped into a coma for two weeks before being taken to Brooke Army Medical Center, where he spent 100 days in the intensive care unit.

He underwent 42 surgeries so far and had his leg amputated above the knee.

As a part of his treatment, the skin was taken from his back and chest and placed on his lower half, which was the most impacted by the infection.

“Simple penicillin shot would’ve avoid it at all. When I tell a story to, like, a civilian doctor or even my VA doctors, like, they can’t believe it. They can’t believe that the system failed a service member this badly,” Del Barba said.

“Had this happened to you when you were a civilian, would you have been able to file a medical malpractice?” KSAT Reporter Leigh Waldman asked.

“I would, yes,” Del Barba answered.

Lauren Palladini

Though they were at different bases, separated by hundreds of miles, Lauren Palladini also suffered at the hands of military doctors.

A botched cesarean section by a military doctor at what was then called Fort Bragg left her unable to have more children naturally.

“My husband, you know, he’s an only child, so the only thing he’s ever wanted is a family,” said Palladini, a former Army soldier.

She showed us the video of her telling her husband that she was pregnant and their announcement photos.

After a normal pregnancy, then 22-year-old Palladini had to get a C-section because her birth wasn’t progressing.

“The only thing that we had been told at the time was that I had lost more blood in my C-section than normal, but they weren’t concerned,” Palladini said.

That was on March 19, 2019.

Three days later, on March 22, Palladini was home with her daughter and husband when she started hemorrhaging.

“When the EMS arrived. I just remember, like, looking at them, and they were like, she’s in critical condition,” Palladini said.

The new mother was taken to the civilian hospital because Womack Army Medical Center in North Carolina couldn’t take her.

This was the first of many hemorrhages throughout the course of a month while hospitalized.

“I just looked at my husband and told him I loved him and take care of our little girl because I wasn’t sure that, you know, I was going to come out of it,” she said through tears.

Palladini had a hysterectomy to save her life.

Now, five years later, living in Bulverde, she’s meticulously dug through her medical records and found something went wrong during her C-section.

“My artery had been not fully severed but nicked in my C-section,” Palladini said, showing us what doctors wrote.

An affidavit from a board-certified obstetrician and gynecologist echos that exactly.

Palladini and Del Barba could not sue for medical malpractice thanks to a 70-year-old statute.

“The Feres Doctrine is a 73-year-old law that protects the Department of Defense from service members suing them for medical malpractice,” Del Barba said.

Feres Doctrine

The legal site Justia explains the Feres Doctrine: “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.”

Save Our Service Members is a website dedicated to the history of the Feres Doctrine and efforts to appeal. It breaks down several cases that have been brought to the Supreme Court, including the Feres case.

The site explains the history of the tragic death of Lt. Rudolph Feres, who died alongside other Army soldiers in the Pine Camp barracks fire.

In the original court opinion filed in the U.S. Supreme Court, it’s alleged that Lt. Feres’ death was negligence because he was quartered in “barracks known or which should have been known to be unsafe because of a defective heating plant, and in failing to maintain an adequate fire watch.”

Sfc. Richard Stayskal

In 2019, the SFC. Richard Stayskal Military Medical Accountability Act was introduced and later included in the 2020 National Defense Authorization Act.

“It allowed us to file a claim against the DoD for medical malpractice or medical negligence,” Palladini said.

According to an article in the Washington Post, Richard Stayskal was diagnosed with terminal lung cancer at the age of 36 in 2017.

“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,” the Washington Post article states.

Stayskal began working with his elected leaders to change the law.

In 2018, Rep. Richard Hudson introduced the SFC. Richard Stayskal Military Medical Accountability Act, which would “allow service members to seek compensation for medical malpractice unrelated to their military duties and caused by a DoD health care provider.”

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.”

However, the Department of Defense is the agency investigating the claims.

“I was denied initially in 2022. I was then again denied again in 2023,” Palladini said.

Stayskal’s claim was also recently denied as of March 2023.

“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 Washington Post article states.

They’re not alone.

“The data that we’ve seen, only 2% of cases, have been validated or affirmed, and those victims compensated,” said Joaquin Castro, the representative for District 28.

H.R. 4334

Rep. Castro is co-sponsoring a resolution called the Heroes Act, or HR 4334.

The legislation calls for a third party to investigate claims of malpractice against the military, not the DoD.

“They should not have any less rights than civilians would have if they suffered through medical malpractice. And yet, right now, that’s the case,” Castro said.

“It helps service members like me, service members all over the country, that have been affected to basically have a chance to get justice,” Del Barba said.

“If I can prevent another woman from going through this with a DoD doctor. I’ll keep fighting for that,” Palladini said.

Right now, there hasn’t been much movement on the Heroes Act, it’s sitting in the Judiciary Committee.

Castro believes it will be rolled into a larger piece of legislation, the National Defense Authorization Act, which would be voted on later in the year.

Read more reporting on the KSAT Investigates page.

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