S.C. veteran pushes for change after cancer goes undiagnosed by Army for more than 2 years

Updated: Nov. 22, 2019 at 6:59 PM EST
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YORK, S.C. (WBTV) - A veteran from York County is joining other veterans who are backing proposed legislation that would allow service members to sue for medical malpractice.

Carson Thomas, 28, joined the Army in 2011 and was stationed at Fort Carson in 2012. According to medical records provided to WBTV by his attorney, Thomas first reported groin pain to a Senior Medic in February 2012. He continued to report pain in his groin for the next two and a half years he spent at Fort Carson. Army clinicians diagnosed him with hernias.

“I had my buddy take me to the ER on base because I just felt like somebody was stabbing me. Right in my left groin,” Thomas said. “They already looked over my stuff saying I had hernias and stuff, so they poked around again and gave me some ibuprofen and told me to go home.”

His pain kept him from his duties, and he says he spent most of his time in service on an injured profile.

“There are a lot of people who do try to get hurt or say they’re hurt to get out of doing stuff and I started to realize that people were putting me in that category,” Thomas said.

A few months after he got out of the Army, he was rushed to the emergency room at the VA in Columbia. There he learned he had stage 3 germ cell testicular cancer.

“Once they pulled my DOD stuff up, they were like ‘this dude never had a hernia at all this was cancer the whole time’,” Thomas said.

According to Thomas, the cancer had spread from his testicle and wrapped around his kidney. He says there were several other tumors that developed below his heart.

He became cancer free in 2015, but not without losing his ability to have children, among other challenges.

Thomas came across a story of another veteran who is terminally ill due to an alleged misdiagnosis while serving. After connecting with the North Carolina Green Beret, Sgt. 1st. Class Richard Stayskal, Thomas hired attorney Natalie Khawam of the Whistleblower Law Firm based in Tampa, Fl.

She represents both Thomas and Stayskal. She filed a civil claim for Thomas’ misdiagnosis, but says the statute of limitations has already passed. She says the case likely wouldn’t have gone anywhere because of the Feres Doctrine, a 1950 Supreme Court ruling that prevents members of the military from suing the United States.

Khawam says cases of medical malpractice shouldn’t apply under the Feres Doctrine.

“If Feres was actually being applied the way it was supposed to be applied according to the Feres case, matters like Carson and Sgt. First Class Stayskal would not be barred because those are not combat-related injuries,” Khawam said.

A bill was introduced to Congress earlier this year that would change that. If passed into law, the bill known as the “SFC Richard Stayskal Military Medical Accountability Act of 2019” would allow claims to be filed against the U.S. for injury and death of members of the armed forces caused by improper medical care.

The Department of Defense responded to WBTV’s request for comment on the matter with the following statement:

“The Feres Doctrine is consistent with the premise of the no-fault compensation system applicable to all workers’ compensation programs, including military compensation programs. The department continues to support the longstanding Congressional policy that all military members and their families should be under the same compensation system for personal injuries or death, whether caused by combat, training accident, household accident, natural cause, or other reason. Under the military compensation system, specific amounts depend on many factors (e.g., grade, family size), but in cases of death or severe disability, lifetime compensation is commonly in the millions of dollars. The Feres Doctrine avoids the unsustainable inequity of allowing some military members to sue while others, such as those injured in combat, cannot. The current systems is uniform for all military members. DoD assesses that allowing medical malpractice law suits by military members might, depending on how courts apply compensation offset rules, benefit very few injured individuals. For the provision included in the House-passed authorization bill, the Congressional Budget Office has estimated a cost of $40 to $50 million per year, beginning in Fiscal Year 2021.”

WBTV asked several local legislators for their opinions of the bill introduced in the House and Senate this year. Republican Congressman Ralph Norman, who represents South Carolina District 5, sent the following statement:

“Every member of our military is entitled to well-defined benefits should an injury or death occur while serving our nation. This is true regardless of the circumstances or if someone else was at fault. If we give trial lawyers the ability to sue our military for non-combat medical malpractice, those awards will inevitably be valued higher than, for example, the benefits paid to someone who was severely injured or killed in combat. This would be highly inappropriate, and I will oppose any legislation that enables this type of inequity.”

North Carolina Republican Senator Thom Tillis’ office sent this statement in response to the bill:

“Our servicemembers risk their lives to protect our nation and there is clearly a problem when servicemembers lack the same basic legal recourses as prison inmates. Also troubling is the possibility that some servicemembers may not being getting the high level of care that they need and deserve. Senator Tillis believes we need adequate accountability and competency standards for all Department of Defense health care providers. When it comes to reforming the Feres Doctrine, some members of Congress have raised concerns that we could unintentionally create new problems in the process of correcting existing problems, which is why forging consensus and getting this right is so important. Senator Tillis is committed to working with his colleagues so Congress can address medical malpractice and ensure our servicemembers are getting quality care.”

A spokesperson for North Carolina Democratic Congresswoman Alma Adams’ office said they would not be providing a statement for this story. A spokesperson for South Carolina Republican Senator Lindsey Graham’s office said Senator Graham was reviewing the legislation.

For more information about the legislation click here.

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