    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

                             [H.A.S.C. No. 116-33]

                  FERES DOCTRINE--A POLICY IN NEED OF REFORM?

                                   __________

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON MILITARY PERSONNEL

                                     OF THE

                          COMMITTEE ON ARMED SERVICES

                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  HEARING HELD

                                 APRIL 30, 2019

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 ______

                  U.S. GOVERNMENT PUBLISHING OFFICE
    37-500                 WASHINGTON : 2020

                       SUBCOMMITTEE ON MILITARY PERSONNEL

                     JACKIE SPEIER, California, Chairwoman

    SUSAN A. DAVIS, California           TRENT KELLY, Mississippi
    RUBEN GALLEGO, Arizona               RALPH LEE ABRAHAM, Louisiana
    GILBERT RAY CISNEROS, Jr.,           LIZ CHENEY, Wyoming
        California, Vice Chair           PAUL MITCHELL, Michigan
    VERONICA ESCOBAR, Texas              JACK BERGMAN, Michigan
    DEBRA A. HAALAND, New Mexico         MATT GAETZ, Florida
    LORI TRAHAN, Massachusetts
    ELAINE G. LURIA, Virginia
                     Glen Diehl, Professional Staff Member
                              Dan Sennott, Counsel
                             Danielle Steitz, Clerk

                                C O N T E N T S

                                  ----------
                                                                       Page

                  STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

    Kelly, Hon. Trent, a Representative from Mississippi, Ranking
      Member, Subcommittee on Military Personnel.....................     3
    Speier, Hon. Jackie, a Representative from California,
      Chairwoman, Subcommittee on Military Personnel.................     1

                                   WITNESSES

    Figley, Paul F., J.D., Professor of Legal Rhetoric, American
      University Washington College of Law...........................    13
    Lipe, Rebecca, J.D., Former Air Force Judge Advocate and
      Associate Attorney, Steptoe & Johnson, LLP, Service Women's
      Action Network.................................................    10
    Stayskal, SFC Richard, USA, Special Forces Green Beret...........     5
    Stirling, Dwight, J.D., LL.M., Chief Executive Officer, Center
      for Law and Military Policy....................................    12
    Witt, Alexis, Widow of SSgt Dean Witt and Advocate for Feres
      Doctrine Reform................................................     8

                                    APPENDIX

    Prepared Statements:

        Figley, Paul F...............................................   114
        Lipe, Rebecca................................................    62
        Speier, Hon. Jackie..........................................    37
        Stayskal, SFC Richard........................................    40
        Stirling, Dwight.............................................    73
        Witt, Alexis.................................................    51

    Documents Submitted for the Record:

        ``Rethinking Feres,'' by Andrew F. Popper....................   141

    Witness Responses to Questions Asked During the Hearing:

        [There were no Questions submitted during the hearing.]

    Questions Submitted by Members Post Hearing:

        [There were no Questions submitted post hearing.]
                  FERES DOCTRINE--A POLICY IN NEED OF REFORM?

                                  ----------

                      House of Representatives,
                           Committee on Armed Services,
                            Subcommittee on Military Personnel,
                               Washington, DC, Tuesday, April 30, 2019.
        The subcommittee met, pursuant to call, at 2:12 p.m., in
    room 2118, Rayburn House Office Building, Hon. Jackie Speier
    (chairwoman of the subcommittee) presiding.

    OPENING STATEMENT OF HON. JACKIE SPEIER, A REPRESENTATIVE FROM
       CALIFORNIA, CHAIRWOMAN, SUBCOMMITTEE ON MILITARY PERSONNEL

        Ms. Speier. Good afternoon. This hearing will come to
    order.
        I want to welcome everyone to the Military Personnel
    Subcommittee of the Armed Services Committee on a hearing that
    we are having today on what has been dubbed the Feres doctrine
    on military personnel, and the prohibition of Active Duty
    service members from bringing suit against the U.S. Government,
    specifically for medical malpractice.
        Feres is the product of judicial activism and Congress'
    silence. As no less an authority than my favorite Supreme Court
    Justice, Antonin Scalia, said, quote, ``There is no
    justification for this Court to read exemptions into the act
    beyond those provided by Congress. If the act is to be altered,
    then it is a function for the same body that adopted it,''
    unquote. The court overreached, and Congress' response is long
    overdue.
        Today, we have a panel to help inform us of the issues
    surrounding the Feres doctrine. Our first three witnesses are
    pained victims who have been aggrieved firsthand by the
    outdated judicial doctrine.
        I want to thank you all for being here. You are
    representing yourselves, your families, and countless others
    despite what you have lost and will lose. Your commitment to
    fixing this policy is admirable and greatly appreciated.
        Our first witness is Sergeant First Class Richard Stayskal,
    whose radiologic diagnostic test was misread at an Army
    treatment facility and who currently has stage 4 terminal
    cancer.
        Sergeant Stayskal, I want to take this moment to thank you
    in particular. Because of the malpractice you suffered, your
    time is numbered in days and weeks, not years and decades. I
    know you would rather spend this time that you have left with
    your family and loved ones closer to home, not here at
    Congress, but I am greatly indebted to you for doing so. You
    have moved me, by the conversation we had months ago, so much
    that I felt compelled to hold this hearing today.
        So I know you are here not because I invited you but
    because your commitment to your fellow service members runs so
    deep, your desire to achieve justice for them so profound, that
    you continue to look out for them as best as you can and as
    long as you can. And I promise you that we will all remember
    your commitment, your honor, and your sacrifice and that I will
    keep working on this to fix it as long as I am here.
        Our second witness is Ms. Alexis Witt, the widow of Air
    Force Staff Sergeant Dean Patrick Witt, who was hospitalized in
    2003 for what should have been a routine appendectomy at Travis
    Air Force Base in Fairfield, California. Following surgery, a
    nurse administered a lethal dose of fentanyl, causing
    respiratory and cardiac arrest, and incorrectly inserted a
    breathing tube into his esophagus, depriving his brain of
    oxygen. Staff Sergeant Witt remained in a vegetative state for
    3 months until Ms. Witt removed his feeding tube.
        Our third witness is Ms. Rebecca Lipe, a former judge
    advocate for the Air Force who now practices in the civilian
    sector, who, while deployed in Iraq, had to wear ill-fitting,
    MacGyvered body armor that caused her debilitating abdominal
    pain. Military physicians repeatedly misdiagnosed and
    mistreated her, making the problem worse and causing chronic
    pain and permanently damaging her reproductive system.
        These three witnesses represent the countless hundreds, if
    not thousands, of victims denied justice over the 69 years the
    Feres doctrine has been in place.
        I hope to learn more about the malpractice the three of you
    have suffered and how the Feres doctrine amplified the harm.
        The families of Feres victims, both here and around the
    country, suffer too. They lose loved ones in the prime of their
    lives and are left with a one-size-fits-all compensation system
    that cannot hope to adjust for the damage done in severe
    malpractice cases.
        When our service members suffer from medical malpractice,
    when doctors fail to perform or woefully misread tests, when
    nurses botch routine procedures, when clinicians ignore and
    disregard pain, service members deserve their day in court.
    When lives are disrupted, ruined, and cut short by negligence,
    service members deserve a chance to receive just compensation.
        We are not talking about special treatment. We are talking
    about giving service members the same rights as their spouses,
    Federal workers, and even prisoners when compensation schemes
    are insufficient. When administrative redress processes fail,
    service members should have their claims heard in the justice
    system under the Federal Tort Claims Act.
        And we are not talking about service members who, in Active
    Duty, are in combat. We are talking about service members who
    are here in the United States or elsewhere not in a combative
    role.
        In our country, we rightfully revere service members for
    their bravery and sacrifice. It is disrespectful and shameful
    that for 69 years, Congress has refused to give them the same
    rights as everyone else or just the same rights as the rest of
    their families.
        But this isn't just a matter of justice; it is a question
    of accountability. Because behind the shield of Feres, DOD's
    [Department of Defense's] health providers act with impunity.
    We have heard countless stories from service members of
    procedures, big and small, botched in ways that are always
    frustrating and occasionally catastrophic. Gauging the full
    extent of this problem is difficult, but ask any service member
    you meet or their family, and they will have a story.
        Allowing service members to sue the Department of Defense
    for medical malpractice will help root out this rot. There are
    few incentives better than the threat of legal action to push
    an organization to change its behavior. This would lead to
    better quality care for our service members and higher levels
    of readiness.
        We will also hear from two legal experts who have studied
    the Feres doctrine. We look forward to gaining a better
    understanding of the legal foundation for Feres and why it has
    remained in place for 69 years just because the Supreme Court
    decided to legislate and Congress has sat back idly. We would
    like our legal experts to share any recommendations on how the
    Feres doctrine may be changed in ways that respect the unique
    nature and needs of the U.S. military.
        The legal experts on our panel are Dr. Dwight Stirling,
    chief executive officer of the Center for Law and Military
    Policy, a think tank dedicated to strengthening the legal
    protections of those who serve the Nation in uniform. Dr.
    Stirling is also a Reserve JAG [Judge Advocate General] officer
    in the California National Guard and co-founder of Veterans
    Legal Institute.
        Also joining us is Mr. Paul Figley, professor and associate
    director of legal rhetoric, American University Washington
    College of Law, that has published on the defense of the Feres
    doctrine.
        Before hearing from our panel, let me offer Ranking Member
    Kelly an opportunity to make his opening remarks.
        [The opening statement of Ms. Speier can be found in the
    Appendix on page 37.]

         STATEMENT OF HON. TRENT KELLY, A REPRESENTATIVE FROM
    MISSISSIPPI, RANKING MEMBER, SUBCOMMITTEE ON MILITARY PERSONNEL

        Mr. Kelly. Thank you, Chairwoman Speier.
        I want to thank each of our witnesses for being here today.
    I particularly want to thank Sergeant First Class Stayskal, Ms.
    Witt, and Ms. Lipe, who graduated from the same law school as I
    did, for your service to our great Nation.
        I wish to extend my profound sympathy for what each of you
    has gone through and are going through. No one should have to
    experience what you have experienced. Our service members, who
    sacrifice so much, deserve the best medical care that we can
    provide, and we, as an institution, let you down.
        I am glad that you are able to tell your stories here today
    and bring public attention to this very important issue. But
    the unfortunate reality is that the Judiciary Committee, not
    the Armed Services Committee, has jurisdiction over this issue
    and should be holding this hearing instead of us. I encourage
    our colleagues on the Judiciary Committee to do so and to have
    an open debate on this issue that impacts our brave men and
    women who serve this great Nation.
        But even if the Feres doctrine is changed, we know it will
    not make you or the other victims of military medical
    malpractice whole. We know that nothing can take away the
    profound wrongs that have been done to you. Therefore, we must
    focus on preventing these mistakes from happening again.
        My primary concern is to make sure that the failures you
    experienced in the military medical health system do not happen
    to other service members. The quality of care in our Military
    Health System is something that is squarely within the
    jurisdiction of this committee.
        In reading through the written statements of Sergeant First
    Class Stayskal, Ms. Witt, and Ms. Lipe, it is clear that the
    medical malpractice in these cases was not isolated to just one
    doctor. For example, Sergeant First Class Stayskal visited
    multiple doctors and the ER [emergency room] on several
    occasions, and not one of those doctors correctly diagnosed his
    cancer. In Ms. Lipe's case, she was treated in a combat zone,
    then at Landstuhl, and then back in the United States before
    anyone found her source of pain. These repeated failures, which
    occurred at military medical treatment facilities all around
    the world, indicate systemic problems within the military
    healthcare system.
        Based on the language of the 2017 NDAA [National Defense
    Authorization Act], the Military Health System is currently
    undergoing the largest reform in a generation. This includes
    standardizing patient experience, improving quality of care,
    and increasing access to care--reforms that are essential to
    fixing the types of issues highlighted by your cases.
        However, there are aspects of the Defense Department's
    reform plan that deserve great scrutiny. The services are
    contemplating a reduction of up to 20 percent of uniformed
    medical personnel, the Defense Department is evaluating whether
    medical facilities should be closed down, and many service
    members and beneficiaries are concerned.
        I fear that these changes may damage the Military Health
    System and that these profound changes will happen without
    proper oversight from Congress. That is why I have asked for
    this subcommittee to hold a hearing on the status of military
    health reform.
        In addition, The Military Coalition, a consortium of
    organizations representing 5.5 million service members,
    veterans, their families, and survivors, recently wrote the
    subcommittee urging the committee to hold a hearing on military
    health reform.
        Madam Chairwoman, I ask that The Military Coalition's
    letter be made part of the record.
        Ms. Speier. Without objection.
        [The letter referred to was not available at the time of
    printing.]
        Mr. Kelly. I urge the subcommittee to have a hearing on
    military healthcare reform prior to the National Defense
    Authorization Act markup so that members can address these
    important issues.
        While I look forward to hearing from each of the witnesses
    today to discuss the Feres doctrine, I also want to learn more
    about your medical experiences and what we can do to make sure
    that these failures don't happen to any other service members.
        With the military healthcare reforms currently underway, we
    have a rare opportunity to fix many of the problems that you
    encountered. So I look forward to your testimony, and I thank
    you for discussing this very important subject.
        With that, Madam Chairwoman, I yield back.
        Ms. Speier. Thank you, Mr. Kelly.
        I ask unanimous consent to allow Members not on the
    subcommittee to participate in today's hearing and be allowed
    to ask questions after all subcommittee members have been
    recognized. Any objection?
        Mr. Kelly. Without objection.
        Ms. Speier. Each witness will have the opportunity to
    present his or her testimony, and each member will have an
    opportunity to question the witnesses for 5 minutes.
        We respectfully ask the witnesses to summarize their
    testimony in 5 minutes or less. Your written comments and
    statements will be made part of the hearing record.
        Also, we had hoped to have Professor Andy Popper of the
    American University Law School testify today. Though personal
    issues precluded his participation, I would like to ask
    unanimous consent to enter his article on this subject in the
    record.
        Mr. Kelly. Without objection.
        Ms. Speier. Without objection, so ordered.
        [The information referred to can be found in the Appendix
    on page 141.]
        Ms. Speier. With that, Sergeant First Class Stayskal, you
    will make your opening remarks. Thank you so much again for
    being here.

     STATEMENT OF SFC RICHARD STAYSKAL, USA, SPECIAL FORCES GREEN
                                 BERET

        Sergeant Stayskal. Chairwoman Speier, Ranking Member Kelly,
    and members of the subcommittee. I am grateful for your
    support, Chairwoman Speier, and thank you for the opportunity
    to appear here before you today in the subcommittee to present
    my story.
        I very much appreciate being invited to testify about the
    Feres doctrine. This is the first time I have ever been called
    to testify, and I wish it could have been under different
    circumstances, but, nonetheless, I feel this is an important
    issue to address.
        I feel this is a very important issue to the military
    community that requires congressional intervention to address
    and fix how this mistaken doctrine is used to strip hundreds of
    service members like myself and their families of the same
    rights that the rest of the citizens of our country have when
    it comes to medical malpractice.
        By way of introduction, I served as a Marine for 4 years
    and am currently serving as a Green Beret in the United States
    Army Special Forces, stationed at Fort Bragg, North Carolina. I
    have devoted my entire career to the military, with this June
    marking my 17th year of service.
        I first enlisted into the United States Marine Corps in
    2001 and served as a machine gunner and a scout sniper for 4
    years. During my 2004 tour to Al Anbar province, Ramadi, Iraq,
    I was critically wounded in action by heavy insurgent sniper
    fire. Following my recovery, I was honorably discharged from
    the Marine Corps.
        By 2008, I had joined the Army and become special forces. I
    was assigned to the 10th Special Forces Group, Fort Carson,
    Colorado, and later assigned 1st Special Warfare Training
    Group. I have been on multiple deployments throughout areas of
    responsibility in support of national interests during global
    war on terrorism. I have held numerous positions throughout my
    military career.
        I was selected by the Army Special Forces Group to attend
    special forces underwater school Combat Dive Qualification
    Course, CDQC. Because of my previous gunshot wound, it was
    mandatory that I could not attend this school without having a
    CT [computerized tomography] scan done of my lungs to ensure
    the safety of myself and other divers within the course. When
    the imaging was done, my physical went forward, and I was
    cleared in January. A civilian had reviewed my scans and
    cleared me to go, and I went down to school.
        Until about 6 months later, I found out that a Womack Army
    doctor failed to identify an abnormally (over 1.5 centimeter)
    large tumor located in the upper right lobe of my lung.
        While attending dive school around the end of March 2017, I
    was experiencing difficulty breathing, and by April 2017 I had
    begun noticing signs of declining health--something I had never
    experienced before in my career or life. I was wheezing,
    coughing, had difficulty breathing. Anytime I would lay flat on
    my back, I felt like I was suffocating, and the weight on my
    chest was--it was unbearable. I had also begun coughing up a
    bit of blood at this time.
        Typically, I am not one to complain. My training doesn't
    allow it. We continue to work without complaint. I started to
    express my concerns to my wife, Megan, and my coworkers.
    Finally, I had enough. I had to admit myself for help. I went
    down to the SWCS [Special Warfare Center and School] clinic to
    seek treatment, and they called an ambulance and sent me down
    to the Womack Army Hospital.
        As I was wheeled into Womack Army Hospital, I went straight
    through the triage room and went out to the waiting room, where
    I was placed to wait with everybody else. By the time I saw the
    nurse and she had taken my vitals and I told her my symptoms
    and signs, she pretty much told me there was no way I could be
    in serious pain or any kind of discomfort due to my age and my
    condition of my job. She pretty much just disregarded it.
        By the time I went back and I saw the ER doctor, he had
    ordered an x-ray, reviewed the x-ray, and said it was probably
    walking pneumonia. So he did a couple breathing treatments and
    sent me on my way.
        Later that week, things continued to progress. By 1 week
    later, May 22nd, I was back into the ER. This time, I was
    calling my wife, I called TRICARE, I called the Army hospital;
    I begged and begged and begged for somebody to see me. I knew
    something was wrong at this point. My vision was going out, I
    couldn't concentrate, and I couldn't see.
        My commander, not wanting me to go back to Womack Army
    Hospital and suffer the same thing, put me in my car and had
    somebody drive me out to meet my wife in town. By the time I
    got out there, I was practically unconscious. My wife picked me
    up, along with a friend, put me in a wheelchair, and they
    wheeled me inside.
        While I was waiting to be seen, I completely passed out at
    this time. They took me in the back, where I was told a nurse
    did a sternum rub on my chest to bring me back and wake me up.
    From there, I did more treatments, and the ER discharged me
    with potential walking pneumonia and gave me prednisone. They
    didn't find anything either.
        It was also stated that when I left Fort Bragg Army Womack
    Hospital that something had been seen and it was noted, but
    they didn't tell me what it was or what condition it was, that
    I was just to wait to follow up.
        By the time I had been seen out in town, 6 months had
    passed by. The tumor had doubled in size; 2.8 by 2.2
    centimeters was present on my upper right lung, and the CT scan
    showed a follow-up that should have been scheduled for me. Like
    I said, nobody ever told me.
        It wasn't until finally my commander went down to the
    hospital and demanded that I either be seen or released to go
    off-post. At that time, the officer in charge said it was fine,
    I could go off-post. He released me, but, yet again, it took
    within the system several weeks for me to get off-post and be
    seen.
        Once I was off-post and seen, immediately the doctor called
    me within a matter of a day, told me I needed more scans and I
    needed to bring everything in that I had. I brought that all
    in. Within 2 more days, I was seen, did a breathing treatment
    test. And then the last question he asked me, he says, have you
    been coughing up blood? I said, yes, I have. He says, you need
    to go downstairs immediately and do a scan.
        He called me within the next day and said, if I could have
    you in here tomorrow for a test, I would, but I have to wait
    until the following week. So the following week I went in, and
    I had a biopsy done on my lung. And when I awoke, I was woken
    up to my wife crying and learning that I had, at the time,
    stage 3A lung cancer.
        This life-changing news that could have been addressed
    nearly 6 months earlier while the cancer was still contained to
    one area of my lung--sorry--is inexcusable.
        Later, around Christmas of 2017, I began to cough up more,
    in tremendous amounts of pain. By the beginning of January
    2018, I had to go to the ER, where I was seen again for
    exhibiting difficulties breathing. This was an overall
    physically painful time due to my cancer spreading throughout
    my body.
        I eventually did a PET [positron emission tomography] scan,
    and the PET scan revealed that my cancer had been metastatic
    and had spread. It now was in the left side of my neck in my
    lymph nodes, my spleen, liver, ilium crest, spine, and right
    hip joint. Beginning on January 22, 2018, I was diagnosed stage
    4, terminal.
        The failure of the military doctor's gross negligence and
    the failure to detect my cancer when it was first noted on the
    CT scan done on me in January of 2017 is a mistake that allowed
    an aggressive tumor to double in size and rob me and my family
    of my life without any recourse due to a 1950s Supreme Court
    court case that created the Feres doctrine.
        Because of all that has taken place, I am no longer able to
    complete the Warrant Officer Course which I was selected for,
    and I am now currently being separated due to a medical
    discharge.
        I have endured countless CT scans, MRIs [magnetic resonance
    imagings], PET scans, radiation, chemo, spleen biopsy, lung
    biopsy, as well as surgery to remove my upper right lobe. I
    have had countless other procedures, and no end in sight.
        Lastly, I want to say that this does affect me, obviously,
    but my children are definitely the true victims, along with my
    wife. The hardest thing I have to do is explain to my children
    when they ask me, this doesn't make sense, how is this
    happening, and I have no good answer to give them. And I say,
    that is why I am coming up here to help convince these folks in
    Congress to change this.
        This doctrine has effectively barred hundreds of service
    members and their families any chance to be made whole for
    receiving negligent medical care that is given by the
    government provider when service members are on Active Duty.
    Regardless of whether injury was a result of combat service or
    deployment, the doctrine has been utilized by 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.
        In truth, the only difference between a military provider
    and a civilian provider is the military provider wore fatigues
    to work that day and his or her patients do not have a choice
    accepting their services.
        This is why I am up here today, to call upon you folks to
    hear our cases and hopefully make a change within Congress in
    legislation.
        I want to thank again my attorneys, Natalie Khawam and
    Daniel Maharaj, and again my family, and again Chairwoman
    Speier and Ranking Member Kelly for holding this and hearing my
    story.
        [The prepared statement of Sergeant Stayskal can be found
    in the Appendix on page 40.]
        Ms. Speier. Sergeant Stayskal, that was profound testimony.
    Thank you so very much.
        Ms. Witt.

    STATEMENT OF ALEXIS WITT, WIDOW OF SSGT DEAN WITT AND ADVOCATE
                       FOR FERES DOCTRINE REFORM

        Ms. Witt. Thank you, Chairwoman Speier, and to the members
    of the subcommittee for the opportunity to speak today.
        As you know and as you mentioned earlier, in October 2003,
    my husband, Staff Sergeant Dean Witt, underwent a routine
    appendectomy. The nurse anesthetist was faulted for having
    administered a lethal dose of fentanyl, resulting in
    respiratory and cardiac arrest. She failed to call a code blue,
    used pediatric equipment for resuscitation, and misdirected a
    breathing tube.
        Each mistake delayed critical seconds, and Dean suffered
    severe brain damage and remained in a vegetative state until I
    removed his feeding tube 3 months later.
        I later filed a wrongful death suit, but my case was
    dismissed on the grounds of the Feres doctrine.
        Sixty-nine years ago, the Feres doctrine was wrongly
    decided by the Supreme Court, because it leads to not only
    medical malpractice but also the abuse of power, mistreatment
    of survivors, lack of transparency, and lack of accountability.
        After the malpractice incident and while my husband was
    still in the intensive care unit, I met with two JAG officers,
    a death casualty officer, Dean's major and first sergeant to
    discuss permanently retiring Dean. I was outnumbered, I was
    alone, and I was without legal representation. I knew signing
    these documents was serious, but I didn't understand all the
    implication or consequences it would impose.
        In my distress, I told the JAG officers I preferred to
    wait. I was threatened with the removal of my medical benefits
    and Dean's pay frozen until I signed these documents. Later, I
    would learn that the rush to have Dean retired came down to
    eligibility for survivors' benefits, as Active Duty death
    benefits differ from retired benefits.
        I was also told a formal investigation would take place and
    would result in changes to safety protocols within the hospital
    to prevent another tragedy from occurring. When I asked about
    the details of these safety measures and for a copy of the
    investigation, I was told that the information was protected by
    title 10 of the United States Code, would not be made available
    to me or to anybody in the public, and I would never fully know
    what happened to my husband in the OR [operating room].
        The nurse responsible for my husband's death was also
    responsible for the death of another airman just 1 year prior.
    A colleague had stated she was considered the weakest link in
    their department. Despite her performance being merited as
    unsatisfactory, no preventive measures were taken to curtail
    her advancement, and she went on to kill two patients. If the
    appropriate action had been taken on this nurse during her
    first lethal negligent episode, Dean would still be alive
    today.
        Before I end my time today, I would like to discuss one
    last topic that is delicate in nature. And I don't want to come
    across as indelicate, but it is a matter worth mentioning
    because it affects all survivors that are affected by the Feres
    doctrine.
        It comes down to survivors' benefits. They are often cited
    by the opposition as the reason not to move forward with the
    Feres reform. Military law expert Eugene Fidell has quoted
    survivor benefits as being robust, yet they do not take into
    account pain and suffering. These benefits also come with
    restriction, whereas an award settlement would not have such
    restrictions.
        To name a few of these restrictions and what I experience
    each year, I have to sign a certificate of eligibility form
    proclaiming that I have not married in the past year. I have to
    do this twice a year, for each of my dependents.
        SBP [Survivor Benefit Plan] and the DIC [Dependency and
    Indemnity Compensation] offset cut 65,000 spouses out of nearly
    $12,000 a year in compensation. The SBP is an insurance
    annuity, and DIC is a VA [Veterans Affairs] benefit, but they
    count against one another when they shouldn't. If the survivor
    remarries, he or she forfeits the VA benefit.
        There are also earned income restrictions. With the DIC, I
    cannot take a job that would go over $8,000 a year.
        The Department of Defense survivors' benefit is taxable.
    The SBP is treated the same as a trust or estate, which means
    minor children can be taxed at a rate as high as 37 percent.
    The Department of Veteran Affairs' Dependency and Indemnity
    Compensation is not taxable. With an award settlement, the IRS
    [Internal Revenue Service] does not tax award settlements for
    personal injury cases or wrongful death cases.
        I hope my experience with the Feres doctrine has served a
    higher purpose and gives you a well-rounded view of its effects
    on our military and their dependents. And thank you for holding
    this hearing and thank you for listening.
        [The prepared statement of Ms. Witt can be found in the
    Appendix on page 51.]
        Ms. Speier. Thank you so much for your testimony. I think
    we have struggled for a long time on the issue of widowhood and
    the compensation issue, and it is one that has to be fixed. But
    you have raised some other additional issues that we will get
    to during the rest of the hearing. Thank you so much.
        Ms. Lipe.

        STATEMENT OF REBECCA LIPE, J.D., FORMER AIR FORCE JUDGE
       ADVOCATE AND ASSOCIATE ATTORNEY, STEPTOE & JOHNSON, LLP,
                     SERVICE WOMEN'S ACTION NETWORK

        Ms. Lipe. Madam Chairwoman, Ranking Member Kelly, honorable
    members of the subcommittee, my name is Rebecca Lipe, and today
    I have the unique privilege to speak to you as a disabled Air
    Force veteran and a representative of the Service Women's
    Action Network.
        My story begins in 2011, when I deployed to the Combined
    Joint Special Operations Task Force in Balad, Iraq. In my role
    as the deputy staff judge advocate, I oversaw six subordinate
    commands and their respective JAGs. These duties required me to
    travel around the country in full gear, which included the
    standard-issue ballistic vest.
        Now, the ballistic vests are not designed to fit a woman's
    body. In order for the gear to protect my vital organs, I
    actually had to remove the side panels, and I had to place foam
    inserts on the shoulders in order to remove some of the slack.
    I also was required to overtighten the gear around my waist so
    that it would remain in place. Ironically, this made the gear
    less protective.
        Five and a half months into my deployment, I began having
    acute and debilitating pain in my abdomen. At the same time, we
    were withdrawing from Iraq--excuse me--so there were limited
    resources at the medical facility in Balad to actually address
    my pain.
        However, instead of conducting an actual, thorough exam,
    they first accused me of having an extramarital affair, which
    was blatantly false, told me I must have had STDs [sexually
    transmitted diseases], and then--excuse me.
        Ms. Speier. Ms. Lipe, take your time. Take a little swig of
    water if you would like.
        Ms. Lipe. And then they chalked up my pain to normal
    women's problems.
        From Iraq, I was medically evacuated to Landstuhl, Germany.
    Landstuhl is one of the most premier hospitals in the
    military's arsenal. Even with the extensive resources available
    at Landstuhl, the doctors determined without any objective
    evidence that I had pelvic inflammatory disease, which is
    considered a normal, like, typical woman's problem.
        They also, without any evidence, treated me on antibiotics
    for malaria, which I also did not have, and decided to
    medically evacuate me all the way back to Hurlburt Field.
        From there, the mistakes continued for more than a year.
    The medical providers at Eglin Air Force Base were certain it
    was a female reproductive issue and performed two random,
    unnecessary surgeries on me and prescribed medicine that placed
    me into temporary menopause at 27 years old. This caused
    catastrophic hormonal depletions, organ and vaginal tissue
    atrophy, prevented sexual intimacy of any kind with my husband,
    and caused severe levels of depression to the point I was
    suicidal.
        Throughout this trauma, I was also accused by military
    medical professionals of malingering and making up the
    debilitating pain.
        Thankfully, though, after a year and a diligent review of
    my medical records by one doctor at Moody Air Force Base, my
    care changed. He was appalled at the previous treatment I
    received at the hands of the military and referred me to a
    civilian reproductive endocrinologist and a general surgeon.
    These two doctors immediately and correctly diagnosed me with
    sports herniation as a result of wearing the ballistic gear.
        The civilian doctors subsequently corrected eight areas of
    my abdominal wall and attempted to reverse the effects of the
    unnecessary medical treatment I received at the hands of the
    military medical providers, but the damage was already done. I
    now deal with chronic abdominal pain and complications due to
    that medical treatment.
        Further, my husband and I were completely unable to have
    children except through in vitro fertilization [IVF]. To date,
    we have undergone seven rounds of IVF at the personal cost of
    over $60,000.
        Sadly, through much of this process I continued to receive
    substandard care at the hands of the military. During my first
    pregnancy, the doctors at Andrews Air Force Base misdiagnosed
    an ectopic pregnancy, resulting in an emergency surgery and the
    loss of my fallopian tube.
        During our fifth round of IVF, I suffered a miscarriage and
    had to wait 4 days for a D&C [dilation and curettage] at Walter
    Reed, which should have been an emergency surgery. And then,
    after the surgery, the hospital subsequently lost the remains
    of our baby.
        During our sixth round of IVF, after I had separated from
    the Air Force and switched exclusively to civilian providers, I
    received a level of care I had never received while on Active
    Duty and was able to deliver a healthy baby girl in July 2017.
        This fall, my husband and I attempted our last round of
    IVF, but I experienced potentially fatal complications, and as
    a result, we can no longer have children.
        The compound effect of this revelation along with the years
    of medical maltreatment and physical pain took its toll,
    causing me to seek hospitalization once again.
        Now I sit before you, 10 abdominal surgeries later, as a
    broken but not defeated advocate for service members. Even as a
    JAG and experienced advocate, I had to fight hard to receive
    appropriate medical care from the military system. The majority
    of other military members are not in the same position I am,
    especially our enlisted members, to be able to be an advocate.
        Additionally, service women are still being issued ill-
    fitting gear when the technology is out there to outfit every
    single female with the right gear if Congress would only
    appropriate the funds to do so.
        Members of the committee, as our champions and advocates,
    you can and must ensure that service members have access to and
    receive appropriate care from trained healthcare professionals.
    This includes providing the full range of women's health
    services in light of the growing number of female service
    military members defending our country.
        You must also ensure that the military medical providers
    are held responsible for their incompetent actions.
        Most importantly, you can ensure that service members who
    have suffered from medical malpractice are able to be
    compensated under the Federal Tort Claims Act for their
    injuries.
        No service member should have to fight as hard as I did for
    their health with the military itself. We have the greatest
    military in the world, and our medical care should be no
    different.
        Thank you for the opportunity to offer my testimony, and I
    look forward to answering any questions you have.
        [The prepared statement of Ms. Lipe can be found in the
    Appendix on page 62.]
        Ms. Speier. Ms. Lipe, thank you for your service to our
    country and for your riveting testimony.
        Dr. Stirling.

      STATEMENT OF DWIGHT STIRLING, J.D., LL.M., CHIEF EXECUTIVE
              OFFICER, CENTER FOR LAW AND MILITARY POLICY

        Dr. Stirling. Honorable Chairwoman Speier, Ranking Member
    Kelly----
        Ms. Speier. Could you put the microphone closer to you?
        Dr. Stirling. Yes--and members of the committee, I am
    honored to be here today to address this important topic.
        I am the CEO [chief executive officer] of the Center for
    Law and Military Policy, a nonprofit think tank. I am also a
    law professor at the USC [University of Southern California]
    Gould School of Law and a JAG officer in the Army Guard.
        I recently completed a doctoral dissertation on the Feres
    doctrine. My testimony today is a product of having read every
    case and every article that has ever been written about the
    Feres doctrine and my nearly two decades as a military lawyer.
        The Feres doctrine is the most disparaged and discredited
    legal doctrine in modern history. The condemnation has been
    constant and vociferous and nearly universal. The critiques
    that are the most hard-hitting have been made by the
    conservatives, in particular the late Justice Scalia and
    Professor Jonathan Turley.
        To Justice Scalia, the doctrine was simply judicial
    legislation. The plain language of the FTCA [Federal Tort
    Claims Act] includes the personnel who are in the military, yet
    the Supreme Court had rewritten the act to exclude them. To
    him, this was activism at its worst.
        He also condemned the fact that there was a double standard
    at the heart of the doctrine. It only applies to members of the
    military, not to their dependents or to people who are
    retirees.
        Within the military healthcare system, more than three-
    fourths are civilians. They are the dependents and the
    retirees. Yet, when a doctor does a surgery and leaves a tool
    in their stomach afterwards, they can sue. Or if any of these
    events that we heard here by my colleagues had taken place to a
    civilian, to a dependent, they can sue. But when it happens to
    a service member, they can't.
        If civil liability was so detrimental to the system, why
    isn't it banned? Why doesn't the ban then apply to everybody?
    Instead, it only applies to the few, to the less than 20
    percent who are actually wearing a uniform.
        Professor Turley, for his part, said that the way the
    doctrine operates reduces the quality of care. Applying a cost-
    benefit analysis, government officials overuse folks who are
    military doctors, who can't be sued, and they will underuse the
    civilians who are the specialists, who can be sued. They
    capitalize on a loophole, and they limit the access to the
    specialists who are civilians. As a consequence, according to
    Turley, we are putting our service members' lives at risk.
        This particularly affects the young, the 18- to 22-year-
    olds, who are forced to receive almost all their care at a base
    hospital. I, as a major, and folks who are senior officers can
    often get off-post to see a civilian, but the junior enlisted
    can't. They don't have that kind of pull.
        The upshot of all of this is concerning. While our policy
    makers are sending our military personnel to fight and die
    abroad, they fail to protect them at home.
        Let's keep this in mind: Even those in prison can sue when
    a doctor makes a mistake. We are giving more rights and
    protections to those in prison than to those who wear our
    uniform. I keep having the question, does this reflect our
    values? I have a hard time in responding to that in the
    affirmative.
        Okay. Thank you.
        [The prepared statement of Dr. Stirling can be found in the
    Appendix on page 73.]
        Ms. Speier. Thank you, Dr. Stirling.
        Mr. Figley.

    STATEMENT OF PAUL F. FIGLEY, J.D., PROFESSOR OF LEGAL RHETORIC,
             AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW

        Mr. Figley. Madam Chair, Mr. Ranking Member, members of the
    committee, by way of experience, I spent three decades
    representing the United States in the Civil Division of
    Department of Justice in Federal Tort Claims Act litigation.
    For the last 15 of those years, I was second in command in the
    office responsible for most of the tort litigation of the
    government. For over a decade now, I have been in academia,
    where I teach torts and where I write about sovereign immunity,
    the FTCA, and the Judgment Fund.
        At the outset, we can all agree that government negligence
    or malpractice does cause real injuries and can have a tragic
    impact on the lives of service members and their families. It
    is understandable that such people are frustrated when they
    perceive that they or their loved ones are being treated
    unfairly.
        From the perspective of one injured service member or one
    family, the remedy may seem obvious: allow the injured service
    member to sue in tort. From the perspective of fostering the
    long-term success of a critically important institution, the
    United States military, that remedy is mistaken.
        Simply put, Congress should not alter the Feres doctrine.
    Doing so would disrupt the vital and special relationship
    between the government and its service members. That
    relationship has roots in the military's unique disciplinary
    system, its special and exclusive system of military justice,
    and its comprehensive compensation system.
        The military compensation is similar to State workers'
    compensation programs in that it provides a prompt, fixed,
    administrative remedy without a showing of employer negligence
    or the time, expense, and emotional burdens of litigation.
        The military system is more encompassing than workers'
    compensation laws because it applies to injuries arising during
    a service member's period of service, not just those arising in
    the course of employment at the workplace. Its benefits are
    substantially broader than those of State workers' compensation
    laws and include programs ranging from education to housing to
    medical home improvements, lifelong care, and sexual trauma.
    The VA booklet describing benefits fills 70 pages.
        If Congress overturns the Feres doctrine, attorneys for
    injured service members will litigate whether someone in the
    government wrongfully caused those injuries. And as the Supreme
    Court has repeatedly recognized, the unique relationship
    between the United States and its service members would be
    undermined if exposed to our adversarial tort system.
        One key part of that relationship is the military's
    obligation to take care of its own and to treat similarly
    situated service members equally. Similarly situated service
    members cannot be treated equally if Congress overturns Feres.
        If three service member amputees share a hospital ward, one
    having lost a leg in combat, one suffering the same loss in a
    tank accident in France, and one because of malpractice by a
    military doctor in New York, each will have the full panoply of
    military benefits. The two who suffered their loss in combat or
    overseas would be barred from suing by the FTCA's exceptions
    for claims arising in combatant activities or foreign
    countries. An FTCA suit by the one injured in New York would
    likely recover a million-dollar judgment. The other two service
    members would know it and may well feel unfairly treated. Such
    feelings undermine military morale and cohesion.
        This is not an idle concern. A key lesson of the September
    11th compensation fund is that providing different,
    individualized awards to members of a group who have suffered a
    similar loss can cause frustration and ill will.
        As the report of that fund's special master explained,
    ``There are serious problems posed by a statutory approach
    mandating individualized awards for each eligible claimant. The
    statutory mandate of tailored awards fuel divisiveness among
    claimants and undercut the very cohesion and united national
    response reflected in the act. The fireman's widow would
    complain, `Why am I receiving less money than the stockbroker's
    widow? My husband died a hero. Why are you demeaning the value
    of his life?' ''
        Presidents Truman and Eisenhower understood this when they
    vetoed private bills for the benefit of single service members.
    President Eisenhower explained, quote, ``Uniformity and
    equality of treatment to all who are similarly situated must be
    the steadfast rule if the Federal programs for veterans and
    their dependents are to be operated successfully.''
        For these reasons, Congress should not alter the Feres
    doctrine.
        [The prepared statement of Mr. Figley can be found in the
    Appendix on page 114.]
        Ms. Speier. All right. Thank you all for your testimony.
        Let me start with you, Mr. Figley. Do you think allowing
    service members to sue the government for medical malpractice
    in a noncombat setting would create a worrisome number of
    lawsuits that you might characterize as frivolous?
        Mr. Figley. No. I don't believe so.
        Ms. Speier. Okay. So that would not be an issue.
        You also referenced the trust relationship that exists. And
    there is a special kind of trust that exists between the
    military leadership and service members and their families.
    There is this trust in part because there is a sense that we
    are family and that we will take care of you.
        I want to ask those of you who have suffered the losses and
    the medical malpractice if you feel that the DOD's subsequent
    response has violated that relationship of trust.
        Sergeant Stayskal.
        Sergeant Stayskal. I believe it violates the trust
    completely.
        I mean, you know, when I signed up to do my job, I was
    told: This is your job. You will do this job. You will do it to
    the best of your abilities, no questions asked.
        Well, I believe that when the DOD said that they--whoever--
    they said that they would provide me adequate medical care to a
    standard, and they failed that portion.
        So, therefore, my trust is completely broken with them, not
    all of them, but the ones--but then it goes back to, well,
    which one is it? Who knows now? They are blended in, and they
    disappear within the system.
        So the trust is lost completely there. So I don't--I
    don't----
        Ms. Speier. All right.
        Ms. Witt.
        Ms. Witt. I have to agree with Sergeant Stayskal.
        In my particular situation, because of transparency issues,
    even down to making medical choices for my husband at that
    time, I was not, first, aware that he went so long without
    oxygen. I was only told that it was a couple of minutes and
    that they were just observing him until I actually arrived on
    the base and saw the state that he was in. He was in a
    medically induced coma, so I could not tell, like, how severe
    his brain damage was at that time.
        Had I known, I probably would not have had him suffer in
    his hospital room for 3 months. I probably would have taken him
    off life support at that time, which was a ventilation, and he
    probably would have been able to at least have donated his
    organs. And that affects, like, 10 other people in the world
    that were probably waiting on those organs.
        So that trust right there was lost because I couldn't even
    trust the medical providers who were providing him with care.
        Ms. Speier. You know, Ms. Witt, we have very similar
    experiences. My first husband was on life support, and that is
    exactly what I was concerned about, whether or not I would be
    able to donate his organs. So I totally understand what you are
    going through.
        Ms. Lipe, your comments?
        Ms. Lipe. I have completely lost faith in the DOD to be
    able to take care of me.
        I still am actually a Navy spouse. My husband is still
    serving Active Duty in the Navy. And so, therefore, both myself
    and my daughter are entitled to TRICARE benefits and could
    receive all of our care on base for limited cost.
        Instead, I pay an exorbitant amount of money to pay for my
    private insurance with my current employer because I don't
    trust them. I will not let them touch me or my daughter because
    I no longer trust that they can take care of us appropriately.
        Ms. Speier. Dr. Stirling, you know, those who are
    proponents of the Feres doctrine--and, certainly, Mr. Figley
    made mention of this in his testimony--suggest that depriving
    service members of an ability to sue is a fair trade in the
    circumstances, given the generosity and comprehensiveness of
    the military workers' comp scheme.
        Why do you think enabling service members to take legal
    action in malpractice cases is necessary despite the generosity
    of the scheme?
        Dr. Stirling. Because, Chairwoman, it is simply not the
    case. This idea that VA disability is a substitute for a
    lawsuit in the case of malpractice has been exposed as a
    fallacy by every scholar that I have ever read except for Mr.
    Figley. He is in the minority. I think he is the only one who
    has made that kind of a contention.
        And the reason is this. When you apply for VA disability,
    you have to show that there was a cause. You have to show that
    there was some kind of a military act that led to the injury
    that you are claiming has occurred. Well, in malpractice, you
    can't do that, because all the evidence of the cause is--that
    is the negligence. You can't get to the negligence because you
    can't file a lawsuit.
        So how can you show, when you are submitting a VA
    disability claim, that because of the appendectomy, you know,
    now I don't have any feeling within my fingers? It is because
    of the mistake that I lost the feeling. I don't have evidence
    of the mistake because I can't get to those documents. I can't
    sue.
        And, as we have heard, when I then--you know, if I am the
    patient and I am adversarial to the DOD, they shut down the
    information. So what happens? I have seen it time and time
    again as a veteran advocate. When you are hurt due to
    malpractice and you file a claim, the claim is denied. So you
    don't get that claim. That is a fallacy, and it should be
    rejected. And it has been by everyone except for my colleague,
    by Mr. Figley.
        Ms. Speier. Ms. Lipe, you referenced a traumatic experience
    in terms of gynecological services within the military. And it
    is an issue that I have been concerned about for some time,
    because I worry that there aren't enough sophisticated medical
    professionals with gynecological training in the military.
        I just toured a number of bases over the recess, and,
    talking to spouses, I heard that over and over again, that they
    don't diagnose, you know, cysts, for instance.
        What do you think we should do in order to make sure that
    service members who are women, who are going to need
    gynecological services, can get the kind of care they deserve?
        Ms. Lipe. I think especially given the lack of service,
    either increase the amount of the service providers who have
    those specialty skills in the military or allow those service
    members and the spouses, in certain circumstances, to go off-
    base and seek out civilian specialty.
        Because, for example, like, a reproductive endocrinologist,
    there are very few of them in the military. If they are not
    going to have one--if you are at Altus Air Force Base, they are
    not going to have an endocrinologist there. They should be able
    to seek out a civilian provider who has that.
        So I think it is allowing greater access to the civilian
    sector, which will also improve the standard of care and it
    will allow the most up-to-date care possible.
        Ms. Speier. Thank you.
        Sergeant Stayskal, in our conversation, I would just like
    some clarification. I was under the impression that when you
    went in for your initial scan before going to dive school that
    they actually noted on the results that you had a lesion and
    that you should be referred, and the powers that be just never
    followed up. Was that my error in my recollection?
        Sergeant Stayskal. Yes, ma'am. It was seen--or it was
    missed--it was missed in the beginning but noted the--they
    noted the second--the first time I went to the ER, they noted
    that it was actually seen on the first scans, and nobody ever
    told me. They never followed up.
        When I was discharged from the ER also, the doctor said,
    there is something there, we have seen something, but we are
    not sure of what it is, so you will have to go see a
    specialist.
        Ms. Speier. So the first scan actually did detect the
    error. It just wasn't--you weren't informed, and you weren't
    referred. And it wasn't until your second visit, which was then
    to the ER, that they said that there was something on your
    scan.
        Sergeant Stayskal. Yes, ma'am.
        Ms. Speier. And then were you referred?
        Sergeant Stayskal. Then I was referred, but by the time I
    had heard from pulmonology, I had an appointment that was about
    30 days out before they would even talk to me. And that was
    what I was fighting to call back and say, hey, I need to be
    seen there. And they said, well, you have to be over a certain
    amount of days before you can be seen off-post, and new
    patients are not priority; existing patients are priorities. So
    that was where I had to keep waiting.
        But, again, even once you are referred off-post, you have
    to wait for the specialty referral to go through the system,
    and that has to go to the provider out in town. Then they have
    to call you and schedule an appointment. And by that time,
    about 6 weeks had gone by, again, from my first ER trip to
    where it had, from that point, spread from my lung over.
        And that was when I started coughing up blood profusely, I
    mean, to the point, when I was sleeping, I mean, it felt like I
    was being waterboarded. I couldn't breathe. I felt like I was
    drowning constantly.
        Ms. Speier. Thank you.
        Dr. Stirling, in your dissertation, you reference that two-
    thirds of those who are provided services at military hospitals
    are actually dependents. Is----
        Dr. Stirling. Yes.
        Ms. Speier [continuing]. That correct?
        And that being the case, you would think that we should
    prioritize our service members in terms of getting services.
    But it appears that these facilities are providing services,
    first and foremost, to the spouses and the dependents.
        So, in Sergeant Stayskal's situation, he had to wait
    because there were all those other appointments before him of
    dependents. Is that correct?
        Dr. Stirling. Yes. Yes.
        But what is, I think, you know, particularly a problem is
    this idea that if we allow those hurt through malpractice to
    bring a lawsuit that somehow that is going to cause a
    dissension within the troops. And I love when that kind of
    claim is made by someone who didn't serve. Because I have
    served, and I know that that kind of claim is ridiculous.
        In fact, you know, it plays upon the worst kind of ideas,
    because what it does is it takes this idea that--we all are
    thankful for the infantry. Without the infantry, we wouldn't,
    you know, be here. They are the ones out in the field. And when
    they are hurt, it is important. But it is also important when a
    service member is hurt through the malpractice of a doctor.
        So the idea isn't which injury is more important or what
    one service member feels about another. It is, where is
    liability, you know? It is, where should we have civil
    liability? You know, there is no one--and I am at the top of
    the list--who wants there to be liability in combat. That is
    why our Congress and the FTCA said this doesn't apply to
    combat. That is why the bill that is in front of the committee
    doesn't apply to combat. No one wants a commander concerned
    about a suit on the battlefield. Nobody wants that. But what we
    do want is a doctor to be concerned.
        And so, you know, I ask, you know, how do we know that we
    want our doctors to be concerned? Because in every other aspect
    of our healthcare system, if a doctor is incompetent, he can be
    sued. If we don't like the idea of liability, you know, why do
    we have it everywhere else except for the military in the
    context of medical malpractice? It exists everywhere else
    except for one place, for the 1 percent who are fighting and
    dying for us.
        Is it the right kind of a policy to, you know, have their
    doctors, the ones who are fighting and dying, you know, not
    concerned about a lawsuit but every other doctor, to include
    the ones that do work on each of the Members here--you know,
    they have liability, and they do a good job because of that.
        Ms. Speier. Thank you.
        Ranking Member Kelly.
        Mr. Kelly. Thank each of you again. And it was powerful and
    moving testimony, and I appreciate that.
        Sergeant First Class Stayskal, you know, I want to
    reiterate again, it is not--the problem with this is we are
    talking about the Feres doctrine and we are in the wrong
    committee.
        Ms. Speier. Well----
        Mr. Kelly. We are talking about differences between equity
    and law and equity--or cases of equity and cases of law, dicta
    versus real law. And so I hope the Judiciary Committee is
    listening to this, because these are very, very real
    discussions that need to be had in a committee that can
    actually do something about it.
        We are doing something here, and I thank the chairwoman for
    bringing this. We are doing something because we are
    highlighting their need to address this. But the reality is--
    but--so, Sergeant First Class Stayskal, I want to focus on what
    we can do in this committee on military personnel to help other
    soldiers from doing what you have--the wrongs that you have
    been done.
        So did you report any of these incidents to DOD? And what
    actions were taken to investigate the failures of the medical
    treatment?
        Sergeant Stayskal. So, once my wife and I began reading
    back through the notes, the doctors' notes and everything, you
    know, it became very evident that something was wrong. Even
    when I finally got to see my civilian provider out in town, he
    was actually the first one to go, ``Why weren't you seen in
    January? There is clearly a mass there.'' And that was what
    sparked us. And my wife just started reading and reading, and
    before we knew it, it didn't make sense.
        At that point, I actually scheduled a meeting with the OIC
    [officer in charge] of the hospital at the time at Womack. I
    invited my chain of command to go down there with me. They went
    with me. I am not going to speculate where the commander was,
    but he just came off of leave at the time. When I went into his
    office, explained everything that had happened to him, I was
    met with, ``Things do happen.''
        From there, I--pretty much, I mean, there was a lot of back
    and forth, but there was no real answer on--there was nothing
    they could do, you know. So I really got no feedback after
    that. That was pretty much the answer I got, sir.
        Mr. Kelly. I hope that you will let DOD--and hopefully some
    of those guys are listening today, but I hope that you will
    file a complaint so that we can do some systemic things that
    maybe can keep someone else from doing this in the future.
        And I thank you for your service both in the Marine Corps--
    and I actually was in the same area but a little bit after when
    you were there. And so thank you for your service.
        Ms. Lipe, you and I met in my office earlier today. And one
    of the stated goals of the 2017 NDAA Military Health System
    reform is to standardize patient experiences, that service
    members receive excellent care regardless of where they are
    seen. And you have covered a little bit of those, but tell me
    the differences in where you have received care.
        And you don't have any confidence in the military
    healthcare system now to care for you and your daughter. Is
    that correct?
        Ms. Lipe. Yes, sir. I was seen at Landstuhl, Eglin Air
    Force Base, Hurlburt Field, Moody Air Force Base. I have seen a
    number of--and Walter Reed. Two, Walter Reed and Landstuhl, are
    one of the most premier hospitals that the military has, and I
    have received medical malpractice in each of those locations.
        So it doesn't give me faith that I am going to be listened
    to, especially when it got to the point of the medical doctors
    telling me I was making it up and that it was in my head. That
    is not treating you. So I had already had the mental health
    issues because of the hormonal depletion, but when you have a
    medical provider just telling you you are making it up, you
    lose faith in their ability to even listen or treat you.
        So now I see only civilian providers and my daughter sees
    only civilian providers. My husband, unfortunately, because he
    is still Active Duty, doesn't have the option to see anything
    but military providers, and that terrifies me.
        Mr. Kelly. And I think we talked about some of those
    things, things that are within--that we can fix on this
    committee, or this subcommittee. And we talked about the body-
    armor issue.
        Ms. Lipe. Yes, sir.
        Mr. Kelly. And those are the things we can fix, because
    there is the root cause of this. And we still haven't fixed
    that problem.
        And we also talked about the number of female--not female
    physicians--physicians who are capable of treating uniquely
    female problems. And do you feel there are enough, or do you
    think there are things that our military healthcare system
    could do so that we can better take care of our females in
    service?
        Ms. Lipe. I don't believe there are enough.
        For example, at Walter Reed, you have--the GYNs
    [gynecologists] are dual-hatted in both the IVF clinic as well
    as the GYN clinic. So that is one of the reasons why Walter
    Reed can only provide so many IVF treatment cycles per year.
    They are dual-hatted and trying to serve multi purposes, where
    you need to have specialized care where they can focus on
    specific areas. If you are going to do in vitro, focus on just
    in vitro.
        If you are going to be a GYN, make sure they are the best
    GYNs available. And make sure there are enough of them so you
    are not having to see, necessarily, a nurse practitioner; you
    can see an actual GYN. We need more specialists, and we need
    them to account for the amount of women that are in the
    military.
        And in regards to the gear, the technology is already
    there. It just is outfitting it. We can look at the number of
    women serving in the military, and we can count what the gear
    costs and figure out what the appropriate level of
    appropriations is.
        Mr. Kelly. Would you agree with me that, depending on the
    location that you are, what you need is the best health care
    you can get, whether that is military treatment or outside
    treatment? Someplaces that is available, sometimes it is better
    in the military, sometimes it is better on the civilian world,
    depending on where you are located.
        But would you agree we need to look at how we make sure we
    have the right assets, the right people with the right skills
    in the right place at the right time?
        Ms. Lipe. Absolutely. That is the only reason that I was
    referred to the reproductive endocrinologist who got me
    healthy. I had to drive 2 hours each way to see him, but it was
    worth it. And it was thankfully from one doctor at Moody Air
    Force Base who understood that he did not have the experience
    and knowledge to treat me, and he got me to the doctor who
    could.
        Mr. Kelly. And Ms. Witt, I understand that you have
    advocated for changes to patient safety when administering
    anesthesia. What changes would you make to the military medical
    practices regarding the use of anesthesia?
        Ms. Witt. That is a complicated question, because I am not
    a medical expert, and I haven't--even though I am in school
    right now for prerequisites for nursing, I don't plan on going
    into anesthesia as a nurse.
        I have advocated with medical boards to--I don't
    necessarily think that nurses should be doing anesthesia. I
    think it should just be an anesthesiologist, that they are more
    well-rounded in health care. I believe that they have about
    50,000 more clinical hours and experience and additional
    schooling in order to become an anesthesiologist.
        Therefore, if something happens, you have critical seconds
    to apply medical care to someone, to get an airway opened up
    again if it has become closed off. And a nurse anesthetist
    cannot open up an emergency trach [tracheotomy] to do that.
    Only an anesthesiologist would be able to do that.
        Mr. Kelly. I thank each of you three again for your
    testimony here today. And I am sorry for the travesties that
    each of you have deserved. And I want to make that better for
    our soldiers, sailors, airmen, and Marines and our DOD people
    and their spouses in the future.
        So thank you for your service, and I am sorry from the
    bottom of my heart. I just want each of you to know it never
    should have happened. But let's please do what we can to keep
    it from happening again. Thank you.
        And I yield back.
        Ms. Speier. Thank you.
        Let me clarify for everyone that this committee has full
    jurisdiction over the quality of medical health care in the
    military, and that is why we are having this hearing. I think
    it is very informative to all of us.
        And the amendment to the Federal Tort Claims Act is an
    amendment that I am introducing as a bill later today. And it
    will be named after Sergeant Stayskal.
        And I would like to give this to you, Ranking Member Kelly,
    to look at, to see if you would like to join me in that bill.
        Next is Mr. Gallego.
        Mr. Gallego. Thank you, Madam Chair.
        I understand the current interpretation of the law is that
    military malpractice is an incident to military service. I
    mean, that shocks me, as a combat infantry Marine.
        Sergeant Stayskal, Semper Fi, brother. Thank you for being
    here today.
        When you were training to become a United States Marine and
    later Green Beret, were you ever taught that malpractice is
    incidental to serving in the military?
        Sergeant Stayskal. No. Nobody ever--you never--it wasn't a
    discussion, because, you know, when I was young in my career,
    you had faith in everybody. You know, you didn't know any
    better at the time. But I had faith. You know, I figured I am
    serving with the best of the best, everywhere I was at. So to
    assume that, you know, you would need to worry about something
    like that just wasn't a thought on your mind, you know? And you
    assume that your command, your chain of command all the way to
    the top had your support and they would take care of you.
        And I would also like to share with you, when I was shot in
    2004, I have documentation in my records, a bandage that was
    stuffed in my back from the battlefield itself wasn't found and
    pulled out until I was stateside, all the way back in my duty
    station. Never complained about it, never had an issue with it.
    That was part of my service, that was a part of combat, and we
    accepted stuff like that. Things were going to happen;
    decisions were going to be made.
        But when I walk in in civilian clothes and I have a
    scheduled appointment and I am seeking medical care and
    treatment at that point, you know, I mean, there is no
    battlefield decisions at that point. It is just a standard of
    care that should be there.
        Mr. Gallego. That is right, Sergeant. When I joined, even
    though I was enlisted, I already had a college degree, but
    never knew anything about this type of exception that they
    found under the law.
        Madam Chair, some of my colleagues have told me that
    changing this policy would be difficult because of the high
    cost involved--in other words, that there is so much medical
    malpractice in the military, it could cost billions of dollars
    to allow service members the same rights as their fellow
    citizens.
        I wonder, Madam Chair, what it says about our military
    medical system that it is so bad that we have to actually
    shield it, that it could cost multiple billions of dollars to
    fully allow tort claims, you know, which I think should scare
    us all.
        Madam Chair, the interpretation of Feres by multiple
    administrations is frustrating. This administration is worse,
    obviously, that it is willing to steal billions of dollars from
    recruitment, from counternarcotics accounts, and from crucial
    military construction accounts to make policy choices about
    what it likes, but somehow the billions it might cost to
    provide a more expansive reading of the governing statute and
    Supreme Court decision is too expensive. The lack of moral
    prioritization by this administration is galling.
        Speaking frankly, Madam Chair, the situation we have right
    here is just unjust. It is wrong. Sergeant Stayskal and Ms.
    Witt, both of whom have chosen to spend some of this time with
    us this afternoon, instead of their families, deserve better. I
    hope that there is something that we can do about the
    situation, because the moral imperative is clear. This is
    unjust to our service members and their families.
        And with immense thanks to all the witnesses, and your time
    and your sacrifice and your anger, I yield back.
        Ms. Speier. Thank you, Congressman.
        Next is Congressman Mitchell.
        Mr. Mitchell. Thank you, Madam Chair.
        I would join Mr. Kelly in noting that, while certainly
    health care of our military is within the purview of this
    subcommittee in House Armed Services, the judiciary, the
    process by which who can and cannot sue the Federal Government
    or other institutions is, in fact, not the purview of this
    committee. So I am confused.
        But since we are here, we will proceed with discussing
    the----
        Ms. Speier. Will the gentleman yield?
        Mr. Mitchell. If you yield me time to make up for it----
        Ms. Speier. Absolutely.
        Mr. Mitchell [continuing]. I certainly will.
        Ms. Speier. We will stop the clock for a moment.
        There seems to be a refrain coming from the Republican side
    of the aisle that is, I think, unwarranted. This is a hearing
    that we are having about the quality of health care in the
    military by service members who are not in combat situations.
    They all have referred to what are medical malpractice cases
    that indeed come under Feres, but we have every right and
    responsibility to have a hearing on the quality of health care
    in the military.
        And, with that, I will start the clock again.
        Mr. Mitchell. If you give me a moment to respond to your
    question----
        Ms. Speier. Certainly can.
        Mr. Mitchell [continuing]. I would appreciate it, Madam
    Chair.
        The reality is, the title of the hearing is ``Feres
    Doctrine--A Policy in Need of Reform.'' So the reality is, if
    it was about health care, if it was about the provision of
    health care, which is clearly needing, it is not working well,
    that would be fine. But it is not.
        But given we are here today, we will talk about Feres, we
    will talk about its application, because I think it is
    important.
        I will note for my colleague down at the other end that it
    is not the current administration only that has said that this
    is a problem and expensive. The United States v. Johnson case
    was decided May 18, 1987.
        I think, Mr. Figley, you can help us with how long the
    Feres doctrine has been in place.
        Mr. Figley. It has been in place since 1950.
        Mr. Mitchell. And there has been no effort on the part of
    the administration to change that that I am aware of.
        Mr. Figley. It comes up every few years, and I don't
    believe any administration has supported changing the Feres
    doctrine.
        Mr. Mitchell. I will surprise Madam Chair by saying that I
    am deeply troubled by the Feres doctrine. I have had a chance
    to read the dissent from the late Justice Scalia to the United
    States v. Johnson case, and I couldn't agree more with his
    logic, with his rationale.
        And I would like to talk to you about your rationale, the
    one you have hung on to, about--explain to me your rationale as
    to why Feres should not be addressed.
        Mr. Figley. My point overall is that Feres serves in a way
    that treats everybody in the military the same. It is not that
    military physicians can't be sued. No government position can
    be sued.
        Mr. Mitchell. Okay. Let me----
        Mr. Figley. They all have immunity.
        Mr. Mitchell. If we are going to talk about Feres and its
    uses and application----
        Mr. Figley. Yes.
        Mr. Mitchell [continuing]. And if you are concerned about
    variations of it based on State claims in various States, then,
    in fact, we could modify it or amend it to say they all have to
    be done through Federal court, at which point they would be
    uniform, would it not?
        Mr. Figley. No.
        Mr. Mitchell. Why?
        Mr. Figley. The basic substance of the FTCA applies the law
    of the State where the negligent or wrongful act took place. So
    California malpractice law is different from Oklahoma law.
        But deeper than that, if you suffer medical malpractice
    overseas, suit is barred by the foreign tort exception.
        Mr. Mitchell. You have read the--I assume, I am willing to
    bet you have read the Scalia----
        Mr. Figley. Yes.
        Mr. Mitchell [continuing]. Dissent in which he was joined
    by three other Justices, correct?
        Mr. Figley. Yes.
        Mr. Mitchell. And, I mean, what response do you have to a
    pretty compelling argument that Feres simply should not apply?
    That, in fact, by going for the uniformity you seek, we are
    mistreating our military members, treating them--a Federal
    prisoner has more rights to sue the Federal Government than
    does a member of the military for medical malpractice, among
    other items.
        Mr. Figley. Yes, a Federal prisoner can sue the government
    for medical malpractice. A Federal prisoner cannot sue the
    Federal Government for an injury suffered in prison industries
    as a----
        Mr. Mitchell. Well, but if you would just answer my
    question. You have tried to parse it. But if you could just
    answer it. They can sue for medical malpractice.
        Mr. Figley. Yes.
        Mr. Mitchell. Military members cannot. They can't.
        Mr. Figley. They can--they cannot if it is part of--yes,
    you are right. Typically, they cannot sue, but----
        Mr. Mitchell. So explain to me the rationale, why you would
    argue at this point in time--and I have looked at your
    biography and history--that military members should have less
    rights, which is finally what you said, than a Federal prisoner
    to pursue claims that they have suffered medical malpractice.
        Mr. Figley. Because the Federal prisoner does not have the
    overall compensation----
        Mr. Mitchell. Well, you have just explained it from the
    perspective of a Federal prisoner. What about the perspective
    of a military member?
        Mr. Figley. A military member has all of the support
    systems, put in place by Congress, whether they are adequate or
    not--and I think----
        Mr. Mitchell. With all due respect----
        Mr. Figley [continuing]. They are certainly more generous
    than workers' compensation.
        Mr. Mitchell. With all due respect, they don't. I mean, we
    hear from numerous witnesses here--and I apologize. I had a
    press conference I had to go to, so my apologies. I have read
    your opening statements. So please understand it is not just
    out of the blue. And I am offended by it.
        But, more importantly, Madam Chair, I believe that Feres
    needs to be addressed not just for medical malpractice. There
    are other claims that military members should be able to pursue
    that, in fact, Feres and its subsequent rulings have
    prohibited. The idea of uniformity.
        The other is--the other which amazes me is military chain
    of command. Are you kidding me? We have people being injured
    because of negligence outside of duties as a combatant. You go
    to combat, you understand that is the deal. You are in a combat
    environment, people are taking adverse action, that is the
    deal. But outside of that, why should they be stripped of their
    rights while they are sitting on base and someone hits them by
    a car? Why?
        Mr. Figley. For the same reason that if you are a bus
    driver for Greyhound Bus and you are struck by a Greyhound Bus,
    you can't sue Greyhound Bus as workers' compensation. Now, you
    could----
        Mr. Mitchell. Dr. Stirling, go ahead. Join us, please. I
    only have a little bit of time, and I apologize, but----
        Dr. Stirling. When something happens at a hospital on base,
    that is between the doctor and the patient. That information
    doesn't get back to the chain of command. It can't----
        Mr. Mitchell. Certainly hopefully not.
        Dr. Stirling [continuing]. Because of HIPAA [Health
    Insurance Portability and Accountability Act]. I work as a JAG
    officer in the Army. It cannot. If it gets back, then the
    person who has relayed it back will get into trouble.
        The idea that being able to sue a doctor would affect the
    good order and discipline of the unit is ridiculous, and it has
    been rejected by every scholar that I have ever read, to
    include in the Johnson case.
        The idea--well, here. I will tell the group this. I have
    worked for many years as a JAG, as a prosecutor. And what I do
    is I handle the accusations typically in the sexual assault
    case, of a survivor of a sex assault who is making an
    accusation against someone who is in the chain of command.
    Oftentimes that is against the commander. So here we have a
    charge made within the unit between a survivor of assault and
    the commander, and we let those cases go forward. And they
    don't hurt good order and discipline.
        So this idea that--if I could just finish. So the idea that
    if we allow a suit between a patient and a doctor that is
    completely removed from the chain of command, that it would
    somehow affect the good order and discipline is just
    ridiculous.
        Mr. Mitchell. Well, let me, because I have gone well over
    my time--and I apologize, Madam Chair.
        I believe that discussing it solely in terms of medical
    malpractice is inadequate. I believe that since the courts have
    failed to deal with this effectively--I don't even agree with
    the logic of the Feres doctrine to actually believe it----
        Dr. Stirling. And I agree with you on that.
        Mr. Mitchell [continuing]. We need to address this on a
    more holistic basis so that, in fact, our military should not
    have fewer rights to protect themselves, to recover in
    circumstances of negligence, than do other citizens. And right
    now they do, and it is morally wrong.
        So, with all due respect, thank you for the additional
    time. I appreciate it. Thank you very much for being here. I
    appreciate your service, sir--all of you. I am sorry.
        Ms. Speier. Thank you, Mr. Mitchell.
        Mr. Cisneros.
        Mr. Cisneros. Thank you, Madam Chair.
        Thank you, Staff Sergeant, Ms. Witt, and Ms. Lipe, for
    being here today.
        Ms. Witt, I want to ask you a question just basically based
    on your testimony. You said you have to apply on an annual
    basis for you, and I think you said your children biannually,
    for VA compensation to your husband's death.
        How much do you get from the VA on a yearly basis, if you
    don't mind me asking?
        Ms. Witt. I can give you an approximate number, because I
    don't have my taxes in front of me.
        So I believe that there are two different types of
    benefits. So the Department of Defense has the survivors'
    benefit, which is taxable. That is paid to my children. And
    then the Department of Veterans Affairs has the Dependency and
    Indemnity Compensation that is not taxable, nor is it
    transferable.
        If I did not have children, say, if I was a widow to
    someone who I had not had children with, I would not be able to
    receive both these benefits together.
        To answer your question directly, I believe that my
    children each get about $450 each from the Department of
    Defense for survivors' benefits, so you can do the math on that
    if you want.
        Ms. Speier. And it is taxed.
        Ms. Witt. And now it is increasingly taxed because of the
    recent tax codes that have gone up, but----
        Mr. Cisneros. Right.
        Ms. Witt [continuing]. I mean, it can be as much as 37
    percent, because it is being treated like a trust for a very
    wealthy child.
        Mr. Cisneros. Right. So I will just say, it is not very
    much.
        So, Dr. Stirling, if she was permitted to allow a suit for
    malpractice, I mean, based on your experience, how much do you
    think she could have gotten?
        Dr. Stirling. From what I have heard here, Congressman, you
    know, $10 million or more. That kind of negligence, of the
    injection of a drug during a routine appendectomy that results
    in the death of the patient, where there is no explanation for
    it, it is just an error by the nurse, it would be, you know,
    $10 million or more.
        And the idea there is that if we are concerned about a
    sense of a double compensation, if we are concerned that, oh,
    she could get a claim for, let's say, $10 million and receive
    from the VA, we do adjustments like this within the government
    all the time, where we could reduce the amount of her claim
    that she got from the FTCA by the amount that she receives from
    the VA. We can make that adjustment. We do it all the time.
        There is a lot of concern that I have heard from Mr. Figley
    about the double-dipping idea, that, oh, there would be a
    judgment on a lawsuit and--no. We can make that adjustment. We
    do it all the time. That was one of the points within the
    dissent within the Johnson case, is we were told by Justice
    Scalia that these kind of adjustments are done on a routine
    basis.
        For instance, I work in the National Guard. I have applied
    for a claim under the VA for a disability. If I get that claim,
    if I prevail on that claim and I get some kind of a rating, I
    won't be able to receive my money from the VA until I am out of
    the Guard, because, otherwise, it would be seen as a double
    compensation. We can make those adjustments.
        Mr. Cisneros. Right.
        And just one other question. I know, Mr. Figley, you had
    mentioned that one of the reasons for doing this is because all
    members of the military are treated equal and to make sure, if
    one person was able to sue for one injury that they had, when
    somebody was sitting in the--sharing a hospital room with them,
    would feel mistreated because of that. And you brought up the
    fact that after
    9/11 those individuals received equal payments. That----
        Mr. Figley. No, they did not receive----
        Mr. Cisneros. Right. That is not true.
        Mr. Figley. They received unequal payments. That was the
    problem.
        Mr. Cisneros. Correct. So if they received unequal payments
    in that situation, why couldn't we do that, the same thing for
    our military folks? It should be, if somebody was treated
    wrongly and done wrong, why shouldn't they be justified there
    through the means of being able to sue and get compensation for
    that mistake and that injustice that was done to them?
        Mr. Figley. Certainly, Congress can decide to do that. The
    disadvantage is that people with similar injuries could receive
    drastically different amounts. If you are injured in Toronto,
    you would get nothing. If you are injured in Kansas, you would
    get much less than if you had exactly the same injury in
    California or New York.
        Mr. Cisneros. Well, I mean, this is done in Federal--go
    ahead, Dr. Stirling.
        Dr. Stirling. Well, it is just, that happens all the time
    under the FTCA. Under the FTCA, the way that it is written is
    it is the State law in that State that controls. That happens
    all the time right now. So why are we using this as an argument
    to stop a service member from being able to recover when
    everybody else can?
        Mr. Cisneros. Right. Yeah. People are able and allowed to
    sue now for malpractice in different States, and they are not
    always going to get the same compensation, there is no equality
    there.
        Dr. Stirling. Right.
        Mr. Cisneros. So why should we go on and continue?
        So my time has expired. Thank you very much.
        Ms. Speier. Thank you.
        Ms. Escobar.
        Ms. Escobar. Thank you, Madam Chair, for bringing us
    together for this very important hearing.
        I want to thank all of our witnesses for being here today.
    I really appreciate your testimony, especially the three of you
    who have been so deeply, traumatically impacted by what
    happened to you. Your stories are moving and horrifying and
    powerful.
        And, Ms. Witt, your sister is a constituent of mine in El
    Paso, and she reached out to me. And it is a privilege to get
    to meet you--all of you, really.
        My question--and it is somewhat along the lines of what my
    colleague Mr. Cisneros started talking about with regard to
    compensation. The purpose of being able to sue when you have
    been wronged is so that you can receive compensation for your
    pain, for your suffering, for the time and money that you are
    out as a result of someone's negligence.
        And, Ms. Lipe, you mentioned a little bit about the
    extraordinary amounts of money that you have had to expend
    personally so you can have a family.
        And so I am wondering if each one of you wouldn't mind,
    just very briefly, if you had to put a number on what this has
    cost you--and I know that it is impossible to put a number on
    the trauma and the pain and the loss, especially you, Ms.
    Witt--but the lost income, amount that you have had to spend on
    physicians. Have you thought about that cost? Have you
    calculated that before?
        Ms. Lipe, you are nodding, so maybe we start with you and
    then we work our way over.
        Ms. Lipe. I have thought about it, because, to Mr. Figley's
    point that the VA compensation is adequate, is completely a
    misstatement. I receive disability compensation. It would have
    taken me 35 months of my disability compensation to actually
    pay for what I have paid in for IVF.
        Additionally, my VA compensation can't--there is no
    accountability or diagnostic code for infertility. There is no
    diagnostic code for abdominal pain without any cause. So you
    can't have everything if you don't have a code to claim.
        I see it as not only the money I have spent to have my
    daughter, the money we would need to spend, up to $50,000
    probably, to have another child if we would pursue adoption;
    the pain and suffering I feel every day. I take eight pills a
    day just to function. As Dr. Stirling said, it would be in the
    millions, because I don't know for how long I will be able to
    work. So there is loss of earning capacity.
        Now, I will say that, yes, I am a lawyer, so I think about
    it a little more practically, but, for me, it is more the
    noneconomic, the pain and suffering, the lost time with my
    family, the days I have to lay on the couch while my husband
    plays with my daughter and trying to explain to an almost-2-
    year-old why Mommy can't play with her.
        I would say it would be in the millions, just for
    noneconomic. And that is something you can never recover
    through a VA claim.
        Ms. Escobar. Right. Thank you.
        Ms. Witt. I don't know if I have ever actually thought of a
    dead figure. I know, when I first filed my wrongful death suit,
    we had to fill in the block for, like, how much money do you
    want to sue for. And I think we came up with just the loss of
    income and the fact that my husband was 25 at the time. He was
    approaching the peak of his earning income, because he wanted
    to start going to school, start using his benefits for
    education and become a commissioned officer. So the number that
    we had figured was about $5 million.
        And to raise a child, it costs $270,000 from zero to 18.
    And that barely covers, like, just their basic care. That
    doesn't cover extras like going on family vacations or
    extracurricular activities that they want to do. Nor does it
    cover their education benefits, even though my children will
    receive education benefits.
        And then there is just loss of time with my children. I am
    a single parent. Employers are not very forgiving to single
    mothers, and it is very difficult to find a job and an employer
    who is compassionate, that knows, hey, I can't drop off my kids
    to daycare this day because they have a 104-degree temperature.
    And even going to school at the time, professors were not very
    forgiving of me having to miss days or even bring my sick child
    into the classroom so that I could complete my degree.
        And then there is just the severity of the loneliness. I
    have chosen not to remarry because of this, because I will lose
    this income that is coming in that I will say has major
    disparities in it that need to be fixed.
        So I would say, at the time it was $5 million, but I would
    say, I believe the lawyer at the time that was filing that for
    me told me that was a very conservative number given what we
    had gone through as a family and the fact that my husband was
    essentially brain dead after an appendectomy.
        Ms. Escobar. Thank you.
        Sergeant Stayskal. First off, you know, when this illness
    finally takes me, my wife will join Ms. Witt in all of the same
    things firsthand. So I don't need to repeat any of that.
        I am not going to answer, truthfully, ma'am. I am sorry,
    but I can't put a number on my life. There isn't an amount. You
    know, I think my kids would probably pay you money to get my
    life back.
        But I know, over the last year since we have been off-post
    to see specialty referrals down in Tampa, Florida, I mean, we
    drive our own car, we pay for our own gas. I mean, we are 8, 9,
    10 hours, 11 hours in the car, every 3 months. Sometimes there
    was charitable donations that helped us with gas cards; a lot
    of times there wasn't.
        You know, I didn't make the law, I didn't pass the law
    about how best to handle these things was through amounts of
    money. But my answer would be: whatever amount keeps that
    practitioner from practicing again.
        Ms. Escobar. Yeah.
        Sergeant Stayskal. So that is not up to me to decide. That
    is up to attorneys and lawyers. That is up to you all in
    Congress to make those decisions about money. But that would be
    my answer. Whatever stops that person from making that same
    mistake again, put that number on it, and that would be my
    answer.
        Ms. Escobar. Thank you, Madam Chairwoman.
        Thank you all.
        And my point with that was not to try to measure what a
    life is valued at, but the fact that you were not able to sue
    and to get compensation. You are losing more than just through
    pain and suffering, but there is a real cost to the fact that
    this is happening to all of you.
        Ms. Speier. Before going to Mr. Crist, I have one question
    for Ms. Witt.
        You said that you can't make more than $8,000 a year or you
    lose your veterans benefit? Could you just clarify?
        Ms. Witt. Yes, that is right. That is about a round figure
    from the last time that I checked the website.
        I receive from the Department of Veterans Affairs the DIC
    payment, which I think is rated for about half of what my
    husband's retirement would be if he were to have gone about 20
    years in the military and retired in full.
        As I was looking at that, I don't know how often this is
    enforced, but I do know that there is an earned-income
    restriction right around $8,000 or $9,000. And there are also
    earned-income restrictions with Social Security as well.
        It is very difficult to find an employer and a job, let
    alone one that is part-time, that is graded for someone my age.
    I mean, usually, part-time work usually goes to students and to
    people who are much younger than me and also don't have
    children. So unless I had found an employer that can meet those
    restrictions, I have chosen at this time not to work and just
    be home with my family.
        Ms. Speier. So you would probably have taken a full-time
    position if you didn't have that restriction on a cap of making
    no more than $8,000 a year.
        I mean, it is sort of like, you know, adding insult to
    injury to have that kind of a restriction. I mean, you have
    been widowed by malpractice in the military system, and you are
    now struggling to try and maintain a quality of life for your
    family, all due to the fact that there was malpractice at a
    military hospital.
        So we are going to pursue this more.
        Mr. Crist.
        Mr. Crist. Thank you. And, Chairwoman Speier, I want to
    thank you, particularly, for your graciousness in allowing me,
    as not a committee member, to participate in this hearing
    today. And so thank you for your leadership, and for all the
    advocates.
        And to the three witnesses who have been subject to this
    horrific Feres doctrine, I can't thank you enough for your
    courage in being here today, sharing with us your personal
    story about how this has affected your lives and your families'
    lives. It takes a lot of strength to do that, and you are
    commended for it.
        And it is Sergeant First Class Richard Stayskal? Am I
    saying that correctly, sir?
        Sergeant Stayskal. Yes, sir. ``Stayskal.''
        Mr. Crist. Great. I am curious, how did you first learn
    that you would not be able to file a case, you know, in
    conjunction with what happened to you?
        Sergeant Stayskal. Well, when I first started talking about
    it with coworkers and just family and everybody else, you know,
    the thought was, how is your wife going to provide for herself,
    how is she going to take care of the kids on a single income,
    and all that.
        You know, I am not a big fan of the whole thing, but it
    made sense. You know, like Ms. Witt was saying, it is a fact;
    it takes money to raise children and provide for them.
        So, when I started looking into it first, I believe the
    first place I went was on Womack down to JAG, and that was my
    first question. I said, ``Hey, I would like some information
    about how I would file a lawsuit against a civilian
    practitioner who works at Womack.'' And the answer I was met
    with was, ``You cannot.'' And I said, ``Well, why not?'' ``I
    don't know why exactly, but there is a law that says you
    cannot.'' That was the best answer he could give me at the
    time.
        And then I pretty much just went on from there. So after
    that, I figured, well, no military JAG was going to help me, so
    we thought, let's look off-post. So my wife--I think we rounded
    the number--well, let's call it 10. She called about 10
    offices, crying, telling the story over and over and over
    again. And every time, they said, that is a compelling story,
    but I am sorry, nobody is going to take your case, and nobody
    is going to listen to you.
        That was pretty much how that went until we met a
    whistleblower law firm down in Tampa, who--they saw the same
    thing you all are seeing here today, that this is egregious and
    it needs a fix.
        Mr. Crist. Well, thank you.
        I found out about your case, in particular, in Tampa Bay. I
    represent St. Petersburg and Clearwater on the other side of
    Tampa Bay from Tampa. And I was with a reporter with our NBC
    [National Broadcasting Company] affiliate, Steve Andrews. And,
    you know, we were at Bay Pines, which is our VA hospital in
    Pinellas County, talking about a different story. And he
    mentioned to me what was happening to you. And he said, well,
    what do you think about that? I said, that sounds ridiculous.
    And he said, well, what do you think ought to be done? I said,
    we ought to reverse the law. And because of the chairwoman's
    leadership, we are at that point.
        But, but for having found out about your circumstance and
    your situation, similar to the ones that the other two of you
    have suffered, we wouldn't be here right now, I don't think.
        And so the leadership by this chairwoman is extraordinary.
    It is appropriate to be in this committee. You all are related
    to military or military yourself. This is the Armed Services
    Committee. I mean, maybe other committees could weigh in too,
    and maybe they should.
        But I just can't thank the three of you enough for being
    here and your courage and your strength, and God bless you.
        Ms. Speier. Thank you.
        All right. Do you have any closing remarks you would like
    to make, Ranking Member?
        Mr. Kelly. Thank you, Chairwoman.
        And I don't contest that we shouldn't be hearing this in
    the committee. My problem is not with Chairwoman Speier in
    having this hearing, because we have brought this to the
    attention of the people who can do something. We need to have
    this hearing in the committee of jurisdiction which can make a
    change.
        And my second point to that is, we need to change the
    things that we can to make it better. Healthcare reform is
    important, and it is part--this is something we can do, not to
    help you, but we can keep it from happening to someone else.
        And, Chairwoman, I appreciate your leadership in having
    this. And I am going to help you push the Judiciary Committee
    to do their job and have this hearing over there, where they
    can fix this part of the problem. So thank you, Chairwoman.
        Ms. Speier. Okay. Thank you, Ranking Member Kelly.
        We have been in conversation with a number of members on
    the Judiciary Committee. They are very anxious to work with us.
    We wanted to do this jointly with them today, but they had a
    markup, so that wasn't something that we were able to arrange.
        But let me just say that this has been a very powerful
    hearing. Powerful because the three of you came forward to tell
    what are truly reprehensible experiences. They deserve to be
    dealt with the way we deal with cases like that that happen to
    your spouses or your children or that happen through the VA
    system or that happen to a felon in jail. So this has got to be
    fixed.
        The fact that this has been on the books for 69 years
    because the judges--the Justices, I should say, of the Supreme
    Court decided to legislate, is wrong.
        And it is wrong that it has gone on as long as it has
    without the Congress of the United States putting their big-
    people britches on and doing the hard work to come up with a
    solution that is going to provide justice and that is going to
    treat service members like others are treated in Federal
    service in a noncombatant setting.
        So we have lots to do, but you have given us the grist that
    we will use in order to make sure that we move forward on this.
    So we are deeply grateful to all of you, and also to you, Dr.
    Stirling and Mr. Figley, for bringing your perspectives to this
    hearing.
        We now stand adjourned.
        [Whereupon, at 3:53 p.m., the subcommittee was adjourned.]

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