Soldier’s Family Receives Record Malpractice Settlement From Department of Defense

The surviving spouse of Army Staff Sgt. Alfred “Fred” Brazel was recently awarded a multimillion-dollar settlement in a medical malpractice claim against the Department of Defense. The award is the largest to date under a 2019 law that allowed service members to file claims against the government.

What Happened in the Brazel Case

Staff Sgt. Brazel returned from his second Iraq deployment feeling unwell. He sought treatment at a military treatment facility. Initially, the medical providers didn’t make a diagnosis. However, they did note in his records that Staff Sgt. Brazel should have “eyes inside his body,” including a colonoscopy and endoscopy, every five to 10 years.

Despite this note, Staff Sgt. Brazel’s requests for these procedures were repeatedly denied. At one point, his blood test results raised concerns that would have called for an imaging study. Yet, he still didn’t receive these tests.

At age 37, Staff Sgt. Brazel received a diagnosis of stage 4 rectal cancer. He died two months after the diagnosis.

Staff Sgt. Brazel’s widow and her attorney Natalie Khawam filed a medical malpractice claim under a 2019 law that provides military families with the opportunity to file lawsuits alleging medical negligence.

How the 2019 Law Paved the Way for Military Medical Malpractice Claims Against the DoD

Prior to 2019, military service members and their families were barred from filing claims against the Department of Defense (DoD) or the federal government when injuries or deaths were allegedly linked to military service.

The rule, known as the Feres Doctrine, arose from a 1950 Supreme Court decision, Feres v. United States. The case combined several negligence claims brought by injured service members and their families against the DoD or the government.

In Feres, Feres’s estate sued the United States, alleging negligence after Feres died in a barracks fire. Feres’s estate claimed that the government knew the barracks were at an unreasonably high risk of fire due to a defective heating system. Therefore, the federal government failed to use reasonable care when it quartered soldiers in the building, the estate alleged.

In Jefferson, a consolidated case, Jefferson had surgery at an Army medical facility and suffered complications afterward. In a later surgery, the physician found a 30-inch by 18-inch towel marked “Medical Department U.S. Army” in Jefferson’s stomach. Jefferson sued, claiming medical negligence against the army surgeon who performed the initial surgery.

The Supreme Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Thus, service members couldn’t file claims under the Federal Tort Claims Act for injuries related to military service.

In 2019, Congress passed the SFC Richard Stayskal Military Medical Accountability Act “to allow suit against the United States for injuries and deaths of members of the Armed Forces of the United States caused by improper medical care, and for other purposes.”

What to Expect from Future Military Medical Malpractice Claims Against the DoD

Since the 2019 law took effect, at least 448 Army, Navy, and Air Force service members and/or their families filed claims. These claims collectively seek over $4 billion in damages from the U.S. armed forces for allegations of medical malpractice.

As of October 2022, only 11 of the 448 cases had been settled—an approval rate of approximately 2%. Over 25% had been denied. Amounts paid in these claims tend to remain confidential, with the Navy reporting only one settlement of $250,000.

The 2019 law was named after Army Master Sgt. Richard Stayskal. He suffered a delayed diagnosis of lung cancer when a medical provider misread an imaging test. Despite being honored in the 2019 law, Stayskal himself had not received a settlement as of December 2022.

Efforts to conduct effective oversight and improve the quality of care in military medical facilities have been a matter of contention for many years. The Stayskal Military Medical Accountability Act is thus likely to continue generating claims against the DoD and the federal government as patients and their families raise concerns about medical negligence. The slow pace of settlement negotiations may lead to more of these cases appearing in court—where judges and juries may be more sympathetic, as the Brazel case demonstrates.