Filing a Military Malpractice Claim Under the Stayskal Act

For decades, an active-duty service member harmed by negligent military medical care had, in practical terms, nowhere to go — the Feres doctrine our companion guide covers blocked the ordinary lawsuit a civilian in the same situation could bring. The Stayskal Act didn’t repeal that bar. It built a separate, narrower door instead.

Quick answer: The Stayskal Act (2019) lets an active-duty service member file an administrative claim — not a lawsuit — for malpractice at a military treatment facility, with the Department of Defense or Treasury deciding the outcome rather than a court or jury. It excludes care in a combat deployment area, caps non-economic damages at $750,000 (raised from $600,000 in October 2023), and generally requires filing within two years of the malpractice or its discovery. It is a real, meaningful remedy — but not a guaranteed one, and not equivalent to the jury trial and uncapped damages an ordinary lawsuit could provide.

Named for the Case That Exposed the Gap

The SFC Richard Stayskal Military Medical Accountability Act of 2019 — signed into law on December 20, 2019 — is named for Special Forces Sergeant First Class Richard Stayskal, whose lung cancer was missed by military physicians and diagnosed only after it had progressed to stage III. As an active-duty service member, Feres left him with no tort claim against the government for that missed diagnosis, despite an otherwise textbook malpractice case. His story became the public face of a bipartisan push in Congress to create at least a partial remedy — not by overturning Feres, which only the Supreme Court or Congress amending the FTCA itself could do, but by building a separate administrative process alongside it.

What the Process Actually Is — and Isn’t

This is the single most important thing to understand before filing: a Stayskal Act claim is not a lawsuit.

• No court, no jury. The claim is reviewed and valued administratively — by the relevant Military Department for smaller claims, and by the Department of the Treasury for larger ones — rather than decided by an independent judge or jury.
• No formal civil discovery. You are not entitled to the same subpoena power, deposition process, or compelled document production a lawsuit would provide, though the government’s own military medical records are generally accessible through the claim itself.
• The military evaluates a claim against its own care. The Department of Defense reviewing a claim of negligence by its own medical personnel is a structural feature of this process worth understanding clearly, rather than expecting the same independence a civilian court would provide.

It is, for all of that, a genuinely real avenue toward compensation that did not exist before 2019 — just a fundamentally different kind of process than the litigation the rest of this site otherwise describes.

What’s Covered, and What Isn’t

The Act covers personal injury or death arising from negligent medical, dental, or related health care at a military treatment facility. It specifically excludes care provided at a medical treatment facility deployed in an area of armed combat — reflecting the same underlying concern about second-guessing military judgment in an active combat zone that partly motivated Feres itself, even though the Act otherwise exists specifically to work around Feres for ordinary, non-combat medical care.

The Damages Cap: A Real, Meaningful Limit

Economic damages — medical expenses, lost income and other quantifiable losses — are generally recoverable based on the actual harm demonstrated. Non-economic damages — compensation for pain and suffering and similar losses — are capped, and the cap has already changed once since the Act took effect: it was raised to $750,000 as of October 2023, up from the original $600,000 figure set when the Act was implemented. This is a genuinely consequential limit, since non-economic damages are frequently the largest component of a catastrophic malpractice claim, and it is worth factoring into expectations from the outset rather than discovering it only once a claim has been valued.

How to Actually File

1. Complete Standard Form 95 (SF-95) — the federal government’s general administrative tort claim form — including the factual basis for the claim, the specific legal theory of negligence, and the dollar amount demanded.
2. Submit it to the correct Military Department — Army, Navy, or Air Force, depending on which branch operated the treatment facility involved — rather than to a civilian court.
3. Expect a two-tier review, depending on the claim’s value: a claim substantiated for under $100,000 is generally paid directly by the Department of Defense, while claims valued above that threshold go to the Department of the Treasury for review and payment.

The Deadline: Two Years, With a Discovery Component

Claims generally must be filed within two years of the alleged malpractice, or within two years of when the claimant reasonably discovered, or should have discovered, that an injury or death was actually caused by medical negligence — the same basic discovery-rule logic that governs civilian malpractice claims generally, adapted to this specific administrative process. Since military malpractice, like its civilian counterpart, is not always obviously connected to a later-diagnosed condition, documenting exactly when that connection became apparent matters just as much here as in an ordinary malpractice case.

Real, But Not Automatic

It’s worth being direct about this: filing under the Stayskal Act does not guarantee payment. Claims are evaluated on their actual merits, and some have been denied — including, in later proceedings, aspects of Sergeant Stayskal’s own case, a sobering illustration that the Act’s namesake status does not itself guarantee a favorable outcome. The Act created a genuine, previously nonexistent path to compensation for active-duty service members — it did not create an automatic one, and building as strong and well-documented a claim as any other malpractice case still matters enormously.

Practical Steps

1. Confirm your duty status and the facility where care occurred, since combat-deployed-area care is specifically excluded.
2. Gather the complete military medical record, including every provider involved and the specific care at issue.
3. Get an independent medical opinion establishing the standard of care and the deviation from it, exactly as you would for a civilian malpractice claim.
4. Complete and file Standard Form 95 with the correct Military Department as early as possible, rather than waiting until close to the two-year deadline.
5. Document precisely when you discovered, or reasonably should have discovered, the connection between the care and the injury, in case the deadline’s discovery-rule component is later disputed.
6. Consult an attorney experienced specifically in Stayskal Act claims, given how different this administrative process is from an ordinary malpractice lawsuit — including its own case citations and evaluation practices unique to the Department of Defense and Treasury review process.

Sources & Further Reading

• SFC Richard Stayskal Military Medical Accountability Act of 2019, enacted as part of the National Defense Authorization Act for Fiscal Year 2020, Public Law 116-92, signed December 20, 2019
• Department of Defense implementing guidance for military medical malpractice claims, including the Standard Form 95 filing requirement and the Department of the Treasury’s role in reviewing higher-value claims
• Department of Defense non-economic damages cap adjustment, effective October 2023, raising the cap from $600,000 to $750,000
• See our companion guide to the Feres doctrine for why this administrative process exists in the first place, and our general guide to the Federal Tort Claims Act for how an ordinary FTCA claim works for a military dependent or civilian this Act does not apply to