WASHINGTON (SBG), WJLA-TV — A new war is waging again to overturn an old law designed to protect the military from liability in the case of battlefield injuries. The law, known as the Feres Doctrine, generally bars lawsuits from active duty service members who are harmed during medical care. But mourning families and members of Congress are battling to reverse the law they say robs military members of their rights when it comes to medical malpractice here at home.
On a frigid Friday morning just four days after Christmas 2017, Jordan Way returned home to a hero’s welcome at Baltimore/Washington International Airport. The 23-year-old Navy Hospital Corpsman’s casket, draped in an American flag, was loaded into a hearse in silence and then driven through the streets of his hometown as hundreds looked on. Almost two weeks earlier, his parents, Dana and Suzi Way, had gotten the kind of phone call the families of any service member fears. In an emotional exclusive interview with Spotlight on America, Dana Way recalled the conversation that let him know his son was gone, “He said, ‘I’m sorry to tell you, we’ve lost him.’ I just kinda lost it. I don’t really remember what happened from that point.”
The Way’s were stunned. Both were raised in military families and knew the risks that came along with their son enlisting after high school in Carroll County, Maryland. But they never expected to lose him the way they did. Jordan Way was not deployed in a dangerous combat zone. He died following routine surgery at a Bush Naval Hospital at Twentynine Palms, where he worked as a pharmacy technician. (SEE THE HOSPITAL’S STATEMENT BELOW)
“My son died and there’s no accountability,” Suzi Way said. “How can that happen?”
Jordan was healthy, active and aspired to get into orthopedic medicine when he joined the Navy. He was a football lineman in his youth. Years of playing the sport, plus training done for the military, had left him with the shoulder injury that landed him in the operating room. But it took his family a year to get answers to explain how he died following what was described in medical records as successful surgery with no complications by the physician who performed the procedure.
The Navy Criminal Investigative Service spent months investigating Jordan’s death. Documents from those files show Jordan was also given increasing doses of the powerful painkiller Oxycodone by his surgeon, who told investigators Way was “in extreme pain from the surgery” and that he authorized him to “up his dosage.” Those pills were carefully doled out by shipmates who were credited in Way’s autopsy with monitoring the use of his medication throughout the immediate period following his surgery. Investigators noted those caring for Jordan set alarms on their phones to maintain accurate timing of his pills. In the four days following his surgery, investigative records indicate Way took more than 80 Oxycodone, as prescribed.
A preliminary autopsy was conducted, and after a lengthy appeal and request for further investigation by the Way family, it was amended. More than a year after his death, the autopsy concluded Jordan died from opioid toxicity. The Armed Forces Medical Examiner also noted his blood sugar was critically low at the time of death, and was irreversible by the time Way was found unresponsive and blue in the apartment of a friend who helped keep watch over his recovery. More than 45 minutes of CPR performed by Way’s friends and then first responders, couldn’t bring him back.
“When I last talked to him, he was slowly dying and he needed help,” Suzi Way recalled. “Three days of being told make it through the weekend, don’t be that guy. Here take more opioids. And he died. Because he did what doctors told him to do.”
If Jordan Way was a civilian, his parents would have had the option to file suit, claiming negligence. But members of the military and their families don’t have that option. Since 1950, something called the Feres Doctrine has generally barred active members of the military or their families from suing the federal government for medical malpractice. That’s not stopping attorney Natalie Khawam,who represents clients across the country who she says have been harmed, not in combat, but at the hands of military doctors. “You challenge the law, you do what’s right,” she told us.
“Everybody in this country has the right to legal recourse other than those who serve. How does that make sense to anyone,” attorney Natalie Khawam said. “It doesn’t. And that’s why this has to be changed.”
The battle to overturn the Feres Doctrine has gone as far as the United States Supreme Court, which recently ruled against a case involving a Navy lieutenant who bled to death during childbirth in 2014. Prior efforts that have landed at the highest court have met a similar fate. Suzi Way stood outside the court during the latest proceedings, carrying a poster of Jordan with the words “My son’s voice was silenced because of the Feres Doctrine.” She said she was stunned by how many people had no idea the law existed, including some service members. “We didn’t know about that. My son didn’t know about that,” she said.
Congress is now trying to change the law and restore legal rights to service members, as it has done several times previously. This time there’s a bipartisan proposal named after Sergeant Richard Stayskal, a Green Beret with nearly two decades of service to his country. With labored breath, he testified at a Congressional hearing in April about how doctors working for the military repeatedly missed cancer in his lungs, until it had spread and become terminal. Stayskal told lawmakers, “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.”
In that recent hearing, defenders of the Feres Doctrine said the law as it currently stands makes sure everyone in the military is treated the same. Paul Figley, a professor who previously spent decades working on tort litigation involving the government on behalf of the Department of Justice’s civil division, testified, “The unique relationship between the United States and its service members would be undermined if exposed to our adversarial tort system.” He told lawmakers there’s already a comprehensive system to deal with injured active duty service members through workers’ compensation. Others in favor of upholding the Feres Doctrine point to disability benefits that already exist for service members.
Senator Lindsay Graham, R-S.C., has publicly said the Feres Doctrine should not be altered, telling a reporter with North Carolina Fox affiliate WJZY last month that service members essentially make a trade-off when they enlist, accepting the benefits and family protection they receive in exchange for giving up the right to sue when something goes wrong. For now, the bill in Stayskal’s honor has stalled in Congress. But some in the House are hoping the proposal could be added to a larger package of bills. Congressman Guy Reschenthaler, R-Pa., a Navy veteran and former military attorney who prosecuted terrorists in Iraq, is among them. “It shows you just how important this is. You have Republicans and Democrats realizing this is a weakness in the military.” Reschenthaler believes overturning the Feres Doctrine would not only increase accountability and the quality of care in military medicine, it would put injured service members on equal footing with civilians.
“If you’re horrifically injured because of medical malpractice. If you’re misdiagnosed, you cannot recover from that financially and neither can your family members,” Congressman Reschenthaler said. “Whereas if that happens on the outside and you’re civilian you can absolutely file suit and recover for your injuries. So I just want service members to be treated the same.”
For families who’ve lost loved ones as a result of medical malpractice in the military, the battle to overturn the Feres Doctrine isn’t financial. Dana Way said, “It’s not about the money. It’s about holding people accountable in the military world the way we hold people accountable in the civilian world.”
Spotlight on America asked the Navy and its staff at Bush Naval Hospital Twentynine Palms to respond to specific questions about Jordan’s death and the care he received in the days following his surgery. A representative expressed heartfelt condolences, but said the facility could not discuss any details related to Way’s care or treatment because of HIPAA and patient privacy laws. The statement provided said, “Petty Officer Way was a valued member of our team, a friend, and a shipmate. Naval Hospital Twentynine Palms is a close-knit community that was deeply saddened by his loss.” It went on to state that patient safety and quality of care are the highest priorities at their facility, along with protecting the dignity and privacy of its sailors and shipmates.
In the wake of Jordan’s death, the Way’s, like other loved ones of fallen service members, received what’s called a death gratuity payment from the military. The family says it was little comfort as they buried their son in his Class A uniform at Arlington National Cemetery in Virginia. His grave sits just a few rows down from another relative, a veteran who they say died during surgery during his time in the military.
“The Feres Doctrine, to me, is a terrorist that has taken our service members hostage. It at times tortures them and often leaves them for dead. Our active duty military deserve better than that,” Suzi Way said.