As thousands of soldiers returned home from overseas in recent years, American taxpayers have paid more not just for veterans’ medical care but for a surge in malpractice claims against veterans hospitals.
Settlements and court judgments have cost taxpayers $845 million since 2003 and reached a high of $98 million last year, according to an exclusive analysis by The Atlanta Journal-Constitution and Cox Media Group, the parent company of the AJC and Atlanta’s Channel 2 Action News.
Some members of Congress and government watchdogs say the U.S. Department of Veterans Affairs isn’t doing enough to prevent medical errors. They say the agency’s culture lacks accountability and incentives to improve.
“That’s unacceptable,” said Rep. Phil Gingrey, R-Ga., a licensed physician. “It’s we the taxpayers that are actually paying out the claims. And where’s the accountability?” Critics decry the VA practice of awarding bonuses to some doctors and administrators even if they have been implicated in medical mistakes. In Atlanta, a former head of the VA hospital received $65,000 in bonuses over a four-year span, a time when mismanagement of the hospital was linked to the deaths of three mental health patients.
The recent horrendous murder of innocent civilians, including women and children, by an Army soldier in Afghanistan raises many questions as to how the United States will proceed once its investigation is completed. One of those questions involves compensation for the families of the dead and injured. Is there a legal vehicle which allows the American Army to pay damages to these families? Yes, there is. The Foreign Claims Act, 10 U.S.C. 2734, is a statute that allows payment for negligent or willful acts committed by U.S. service members in a foreign country whether the service member was acting in or out of the scope of his employment. Clearly the assailant here was not acting within the scope of his employment. Still the Foreign claims Act allows the United States to provide compensation to the surviving families. The law of the place of the injury (Afghanistan) will determine the nature and amount of damages. While combat claims are excluded under the Foreign Claims Act, these murders are arguably not covered by that exclusion because they were definitely not committed pursuant to combat operations.
Regardless of the ultimate disposition of the accused soldier’s case, the surviving families are still entitled to compensation under the Foreign Claims Act. In all likelihood the American military command, the State Department, and the Afghan government will work closely to arrive at a settlement satisfactory to all the parties knowing full well that no amount of money can compensate for the tremendous losses suffered. Fair and timely settlement will be an important component of trying to reestablish positive relations with the Afghan people.
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One of the most frequent medical malpractice issues that we deal with involves the failure to timely diagnose and treat cancer. Over the years we have successfully prosecuted federal tort claims involving cancer of the breast, lung, prostate, colon, kidney, brain, and many others. An issue that comes up in each case is how much damage was caused by the failure to timely diagnose the malignancy? Unlike a surgical or medication error which is directly caused by a careless health care provider, cancer is virtually never caused by the doctor or nurse involved in the patient’s care. The presence of cancer is the unfortunate consequence of nature. The medical negligence involving cancer is the failure to diagnose the condition in time for it to be successfully treated. Unfortunately, some cancers are so virulent that they are seldom diagnosed in time to successfully treat. Others are simply not amenable to cure despite the best efforts of the medical community. Cancer of the liver and pancreas fall into these categories. Many cancers, however, can be treated, and these are the ones which can result in successful claims when the military or VA health care providers fall short of the mark.
The law requires the injured party (plaintiff) in most tort claims to prove that the negligent act of another was the direct and proximate cause of the plaintiff’s injury. To be successful the plaintiff must present evidence to establish that fact. This requirement always presents a significant challenge in cancer cases. Why? Because a patient’s cancer often has spread to other parts of a patient’s body when the doctor had the first reasonable opportunity to diagnose it. As such, any treatment the patient may receive is not designed to cure the patient but only to provide relief and to perhaps extend the patient’s life by a few months or years. Such cases are seldom successful. On the other hand, if the plaintiff can show by the medical record and expert testimony that more timely diagnosis would have led to treatment that would have cured the patient, then the outcome will be quite different. In the world of cancer treatment “cure” is usually defined as being free of cancer for between five and ten years depending on the particular malignancy. To arrive at an opinion in such cases the expert will refer to the published medical literature on cancer survival rates. This is very sophisticated stuff and only the most experienced oncologists are qualified to address these matters.
Many prospective clients are disappointed to learn that they have no case even though the record reflects that the doctor was clearly negligent. For example, a patient undergoes an x-ray that clearly reveals a mass on the lung. The radiologist failed to identify the mass, and the patient therefore receives no treatment. A month later the patient undergoes another chest x-ray as part of his annual physical. This time the mass is identified. A biopsy proves the lump to be cancer. Further tests, however, demonstrate that the lung cancer has already spread to the patient’s liver. As such. The patient is suffering from Stage IV lung cancer with a dismal prognosis. While the lawyer can prove that the doctor who misread the original x-ray was negligent, he cannot prove that the one month delay had any significant impact on the patient’s treatment or poor prognosis. That is to say, the patient would have needed the same treatment and his condition is terminal. In such a situation it is impossible to show that the patient suffered any significant damages as a result of the negligence. Therefore, there is no viable claim.
In addressing cancer cases, our attorneys always address the issue of causation first, i.e., did the delay in diagnosis make any difference? We consult only the very best doctors in making this decision. If the evidence and the medicine do not support the claim, we forthrightly advise the client of that fact. On the other hand, if the client has a case we prosecute it aggressively. While every case is unique and there are never any guarantees, by using this process we have had tremendous success in resolving virtually every cancer case we have ever filed.
A few weeks ago, two American Army officers were shot to death as they sat at their desks inside the Afghan Interior Ministry in Kabul, Afghanistan, apparently by a rogue Afghan security officer. The killer escaped and has not been apprehended. These murders followed a similar incident two days earlier when two U. S. soldiers were gunned down by an Afghan soldier in Eastern Afghanistan. This brings to 36 the number of American and NATO troops who have been killed by Afghans wearing official police or army uniforms in the last 13 months. While others must consider how these recurring incidents will impact NATO’s ongoing strategy and effort in Afghanistan, I would like to consider the legal ramifications for the families of these victims of terrorism. Can these families sue anyone or any entity to secure money damages for the loss of their loved one?
Because the Feres doctrine bars all military personnel from suing the United States for negligent and wrongful conduct resulting in injury or death, these victimized families have no cause of action against the United States, i.e., for negligent failure to provide for the safety of their soldier husband, father, or son. Likewise, the doctrine of sovereign immunity shields the government of Afghanistan from liability as well. There are statutes, however, that allow tort actions against the actual perpetrators and/or the terrorist organizations that sponsor them.
The Anti-Terrorism Act, 18 U.S.C. 2333, permits victims of torture or murder perpetrated as acts of “international terrorism” to recover damages in tort actions filed in United States federal court. This law applies to injuries sustained in the United States or abroad. This Anti-Terrorism Act allows plaintiffs to sue not only natural persons but also responsible organizations. Since the Taliban has claimed responsibility for virtually every killing described above, the families of the deceased soldiers could bring an action against this organization and seek treble damages. Of course, collecting on any judgment awarded is the major challenge.
There is a second statute that might also provide a cause of action in such cases. It is called The Torture Victim Protection Act, 28 U.S.C. 1350. This statute also provides remedies for acts of torture and murder. Ironically, the United States Supreme Court heard oral argument on February 28, 2012, in a case which challenges the applicability of this statute to terrorist organizations. In Asid Mohamad, et al. v. Palestinian Authority and Palestine Liberation Organization, the Supreme Court must decide whether The Torture Victim Protection Act applies to both “individuals” AND organizations. There is no question that the statute applies to individuals who commits acts of torture and murder. Whether it applies to organizations is the question before the court.
What the two statutes above clearly provide is a cause of action for money damages against individuals who commit, aid, and abet the unlawful killing of American soldiers by their presumptive “allies.” While securing a judgment against the trigger man, and collecting on it, is highly unlikely, the possibility of doing so against an Afghan government official who aids and abets in such fratricide is indeed possible. For instance, in the case of the murdered Army officers there are serious unanswered questions as to how the gunman obtained access to one of the most secure venues in Kabul, i.e., the Afghan Interior Ministry. Moreover, how is it that the gunman was able to escape without detection? If a government official aided and abetted this terrorist act, then a presumptive case could be brought against him under the statutes described above. Given the corrupt nature of many Afghan officials and the huge sums they have pilfered from the United States, there is a very real possibility that money could be identified and extracted from such an accomplice to pay any judgment obtained against him.
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Recently a veteran was shot and killed at the VA Medical Center in Richmond, Virginia. The incident occurred in the early morning outside the hospital when a veteran presented for his cancer treatment. He was confronted by an individual in the parking lot who had a personal vendetta against him. The veteran was shot and died the next day. This tragic event raises multiple legal issues. First and foremost, can the veteran’s family sue anyone for his death? The answer is yes. The murderer certainly can be sued under the Virginia wrongful death statute. However, it is unlikely that much of a recovery will be secured given that the triggerman will probably spend the remainder of his life in prison. The more interesting question is whether the veteran’s family can sue the United States for his death since the incident occurred on government property? The answer is probably no.
The Federal Tort Claims Act, the law that allows citizens to sue the United States government for injury, specifically exempts any injury that occurs as a result of an intentional tort such as assault and battery. Even if the triggerman in this instance had been an employee of the VA, which he was not, any action against the government would be barred. However, that bar would not apply if the claimants could prove that VA negligence was a proximate cause of the vet’s death. For example, if one could prove that the VA was aware that the triggerman was on the hospital grounds with a loaded weapon and took no action whatsoever to intervene, then a possible action might apply. Success in such a case would turn on the facts. What is important here is that the case would not be based on the triggerman’s wrongful conduct but rather on the VA’s NEGLIGENT conduct.
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Today it was reported that seven Marines were killed when two military helicopters collided over the Yuma Training Range Complex on the Arizona-California border. The Marine Corps is conducting an investigation. This terrible tragedy raises multiple legal issues which will eventually have to be addressed by the Marine Corps and the survivors of the deceased Marines.
Because the Marines killed were on active duty when the accident occurred, their families are barred from filing a negligence claim under the Federal Tort Claims Act. The longstanding Feres doctrine enunciated by the Supreme Court limits any damage recovery by the families to military and VA benefits. Of course, those families will also be entitled to the $400,000 SGLI insurance coverage applied to all military members who die on active duty. There is, however, one other possible source of recovery. If the accident was caused by a defective design or mechanical part contained on either helicopter, the families could file a claim against the manufacturer and seek damages under a products liability theory. Such claims can be successful depending on the facts.
Aircraft manufacturers are liable for any defective product they produce even if that product is sold to the government. Military members injured or killed as a result of such defects are entitled to sue the manufacturer just like any other citizen. In most such cases, however, the manufacturer will interpose the “government contractor defense” to avoid liability. The government contractor defense states that a manufacturer can hide behind the Feres doctrine if it can prove that the product causing the accident was built to the government’s specifications or was inspected by the government and accepted for delivery. This is a very sophisticated defense which turns on technical facts and expert evidence. Still, numerous military families have recovered damages against defense contractors, and this theory of liability should always be investigated.
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I recently viewed a disturbing evening news program that reported the significant increase in suicides experienced by soldiers returning from combat duty in Iraq. One of the soldiers featured in the report had experienced symptoms of PTSD while on active duty which continued after his discharge. His attempts to receive treatment at the VA were unsuccessful. Eventually, his disease overwhelmed him and he committed suicide leaving behind a wife and three minor children. The report noted that after a great deal of effort his family was awarded VA benefits.
A question raised by this report, but not answered, is whether this veteran’s family was entitled to file a medical malpractice wrongful death claim against the government? The answer is, “It depends.”
First, it depends on whether denying appropriate mental health care to a patient with diagnosed PTSD is in fact negligent. Second, it depends on whether the family can establish that the failure to provide care was a direct and proximate cause of the veteran’s suicide. Finally, it depends on the state where the negligent care, or lack thereof, occurred.
Let me address the questions posed in reverse order. Under the Federal Tort Claims Act, the claimant must apply the law of the state where the negligent conduct occurred. Some states do not allow damage recovery for suicide. They consider suicide to be a form of contributory negligence or self-inflicted wound.
If the state law includes suicide in its wrongful death statute, then the family will have to prove by expert testimony that the veteran’s death was directly caused by the negligent provision, or negligent failure to provide, adequate mental health care which would have avoided this outcome. This is often difficult to do but will turn on the facts of each case.
Finally, the family will have to prove that the mental health care provided breached the standard of care. This is always a challenge in mental health cases. Unlike medical cases, where the treatment regimen is often quite clear once a diagnosis is made, psychiatric cases are far more complicated. Proving that the doctors treating the patient were negligent is never easy because treating such patients is never easy. As a consequence, claimants are well advised to consult with an experienced attorney before filing such claims under the FTCA. In the appropriate circumstance such cases can result in substantial recoveries for the family which suffers such a devastating loss.
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What effect , if any, will the recent election have on the Federal Tort Claims Act? No one can say for certain; however, there is an outside chance the FTCA could be amended to allow active duty members to sue for medical malpractice. Let me explain. The only thing that prevents active duty members from suing the government for injuries sustained incident to military service is the Feres Doctrine which was enunciated by the Supreme Court in the Case of Feres v. United States. Because the FTCA is a statute created by Congress, it can be amended by Congress. If that were to occur, the Supreme Court would be bound by the amendment.
Twenty years ago Congressman Barney Frank of Massachusetts introduced a bill in Congress to amend the FTCA to allow active duty service members to sue for medical malpractice injuries occurring in “fixed military medical facilities.” Hearings were held and the House of Representatives passed the bill overwhelmingly. Unfortunately, the bill died in the Senate after intense lobbying against it by both the Justice Department and the Defense Department. Given the outcome of the recent elections, that result might change if the bill were to again come up for consideration.
When this bill was last considered, the Senate was controlled by the Republicans. The bill never got out of the Senate Armed Services Committee because Senator Strom Thurman, the Republican committee chairman, refused to bring it up for consideration. Even if it had been reported out of committee, it is unlikely it would have been passed by the Republican controlled Senate. It certainly would have been vetoed by President George H. W Bush. With a Democratic majority in both the House and Senate and a Democratic President, things might be different this time around. In addition, today there seems to be more empathy for soldiers injured as a result of medical malpractice. All these factors could result in the first change to the FTCA in over forty years.
If Congress were to allow soldiers to sue for medical malpractice, there certainly would be limitations applied to that right. First, soldiers would not be allowed to file claims for care received outside a “fixed medical facility” nor would claims be allowed for soldiers in a deployed status. There would also be a requirement that any military of VA disability benefits received as a result of a medical malpractice injury be offset against any FTCA recovery. These are all reasonable limitations that were included in the original legislation and would surely be included in any new bill. On balance, however, amending to the FTCA to allow soldiers to file such claims would be a fair extension of the law, and one which would be welcomed by all service members and their families.
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In Levin v. United States of America, the United States Court of Appeals for the Ninth Circuit upheld the dismissal of a claim for battery arising from the alleged performance of ocular surgery without the patient’s consent. The court held that “the Gonzalez Act makes the [Federal Tort Claims Act (FTCA)] the exclusive remedy for tort actions against military medical personnel.” Furthermore, the court stated that the FTCA preserves the government’s “sovereign immunity against ‘[a]ny claim arising out of . . . battery.’ 28 U.S.C. § 2680(h).” Thus, the plaintiff lacked a basis for recovery against either the United States or the individual physician.
The Ninth Circuit specifically rejected the plaintiff’s contention that the Gonzalez Act waives the United States’s sovereign immunity for battery claims arising from medical care. 10 U.S.C. § 1089 (e) provides that “[f]or purposes of [the Gonzalez Act], the [FTCA’s preservation of immunity against battery claims] shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions.” The court concluded that subsection (e) is “not . . . a waiver of sovereign immunity for battery claims brought against the United States, but . . . an expression of personal immunity from battery claims brought against military medical personnel.”
In so holding, the Ninth Circuit joins a minority of courts immunizing the government and its physicians for the most extreme and indefensible cases of medical malpractice
The family of Marine Sgt. Carmelo Rodriguez says military doctors misdiagnosed his skin cancer. Now, as CBS News correspondent Byron Pitts reports, they want the U.S. government held accountable for his untimely death.
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