Medical Malpractice at the VA
VAmalpractice.info Information on medical malpractice at the VA and the issues veterans face if they chose to file a lawsuit for medical malpractice against the VA.
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VAmalpractice.info cited by the FLRA in the opinion
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER KANSAS CITY, MISSOURI
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEESLOCAL 2663
(Union)
67 FLRA No. 143
…Alfred Hitchcock would probably have referred to this case as “The Case of the Vanishing Patients.” A patient in the secure acute inpatient psychiatry unit, at the Veterans Affairs Medical Facility in Kansas City, Missouri (VAMC Kansas City), vanished and no one noticed that he was missing for over two hours.
The patients in this particular unit are maintained in a secured environment because of their treatment for “drugs, hostile nature, and mental problems” and “[t]hus it is imp[e]rative that patients not be allowed to leave the unit on a voluntary basis.”1 Therefore, the employees rotate the duty of checking that patients are actually present. A “[p]atient [o]bservation [r]ecord” (POR) is maintained and the responsible employee checks and verifies that each patient is present every fifteen minutes.2 After the patient had already vanished from the unit, at least three employees marked on the POR that they had seen him, even though a security camera had recorded the patient walking out of the unit through an unlocked security door earlier that afternoon. Afolabi Olubo, the grievant, marked the patient present (in other words, indicating that he had seen him) four times, each purported sighting at least fifteen minutes apart. From the time the patient disappeared, until it was noticed that he was missing, an undetermined number of VAMC Kansas City employees went through the security door and not one of them even noticed that it was not locked. Fortunately, the patient was discovered later the same evening at his brother’s house (but not until he had first wandered to, and left, his step-father’s house without being detected by anyone).
To this day, it is still a mystery whether the security door was left unlocked because of mechanical defect, negligence, or deliberate “manipulat[ion].”3 It is also undisputed that other “patients ha[d] escaped” from this unit before.4 In one case, the patient “was gone for two . . . days before it was discovered he was gone.”5 One might presume, therefore, that solving the mystery of the unlocked door would be a priority shared by the managers and union officers at AFGE, Local 2663 (Local 2663) in order to ensure that no other patients are lost in the future.
To make the circumstances of this case even more harrowing, within two months of VAMC Kansas City losing the patient in this case, VA medical
facilities in Cleveland, Ohio6 and Pittsburgh, Pennsylvania7 lost patients of their own. Following the Pittsburgh incident, a reporter for the CBS affiliate in Pittsburgh noted laconically that: “Let’s be honest[,] the patient could only ‘go missing’ if the people who were supposed to be watching him weren’t doing their job.”8
I could not agree more. The employees clearly were not doing their job. It is equally obvious, however, that the managers at VAMC Kansas City and the union officers at Local 2663 did not act in a manner that “contribute[d] to the effective conduct of [government] business”9 or that “utilized the [Federal Service Labor-Management Relations] Statute to create positive working relationships and resolve good-faith disputes.”10 Rather, all of the parties involved in this case – VAMC Kansas City, Local 2663, and Arbitrator Archie Robbins – treated this case as if losing a patient is no more serious than losing one’s office key…
1 Award at 6.
2 Id. at 7.
3 Id.
4 Id. at 6.
5 Id. at 7.
6 “Cleveland Police Search for Man Missing from VA Hospital,” https://vamalpractice.info/?p-2194 (last visited August 14, 2014).
7 “Police Searching for a Veteran who the Pittsburgh VA Lost,” https://vamalpractice.info/?p=2271 (last visited August 14, 2014).
8 Id. (emphasis added).
Full Opinion
Mark E. Wisner our latest addition to the VA Medical Providers Hall of Shame
Mark E. Wisner learned he’ll spend more than 15 years in prison for sexually assaulting veterans during medical exams. And while the criminal case is over, civil actions filed against the former physician’s assistant and the U.S. government continue to pile up.On March 12, Kansas City attorneys Dan Curry and Sarah Brown filed three more lawsuits on behalf of Wisner’s former patients, who say they were fondled and excessively questioned about their sex lives while under his care at the Eisenhower Veterans Administration Medical Center in Leavenworth. Some of the veterans who sought treatment had been injured in combat.Curry said he expects to file a few more lawsuits in the near future – bringing the total number to around 100. Some seek $2 million or more in damages.
The cost of medical malpractice during 2017 at the VA
The cost of medical malpractice at the VA is high. While undoubtedly our veterans pay the highest price for the VA’s medical malpractice, the cost to the taxpayer is high as well. In 2017 the VA had $50,988,383 in payments for litigated medical malpractice cases and $37,136,703 in payments for cases that were settled before a lawsuit was filed for a total $88,125,087. If the VA had spent that money on improving care a lot of veterans would not have had to endure the effects of medical malpractice.
District Court awards veteran $1,930,000 for medical malpractice at the Marion VA Medical Center
In addition to awarding the veteran compensation for his pain and suffering the court specifically found that as a result of the medical malpractice at the VA, the veteran’s life was shortened as a result of the medical malpractice by 2.7 years. The complete January 19,2018 opinion can be found at Gunter v. USA
A listing of all the medical malpractice cases that the VA paid during 2017 can be found at Cost of Medical Malpractice at the VA
$21,000,000 verdict entered against the Department of Veterans Affairs for medical malpractice at the Manchester VA
Veteran awarded more than $21,000,000 for malpractice at the Manchester NH VA
In what has to be one of the largest medical malpractice verdicts ever against the VA the District of New Hampshire has awarded a veteran more than $24,000,000 to veteran who suffered two strokes as a result of medical malpractice at the Manchester VA.
MEMORANDUM AND ORDER
In October of 2010, Michael Farley experienced symptoms including the loss of his peripheral vision and a painful headache. A veteran of the United States Navy, Mr. Farley sought treatment at the Veterans Administration Medical Center in Manchester, New Hampshire (“Manchester VA”). There, Mr. Farley was examined and given a series of tests, and he learned that he had suffered a stroke.
It is a basic principle of medicine that a patient who has suffered a stroke is generally at an elevated risk of suffering a second stroke. Therefore, doctors who are treating stroke patients must be cognizant of this risk, and they must take steps to prevent a second stroke from occurring. As such, the established standard of care requires that a stroke patient undergo a thorough diagnostic evaluation to determine the cause of his stroke, and it requires that the patient be prescribed certain medication to treat the underlying condition that caused the stroke to occur.
Unfortunately, Mr. Farley’s doctors at the Manchester VA did not adhere to this standard of care. They failed to provide him with an adequate diagnostic evaluation, and as a result, they carelessly prescribed him the wrong medication. In the words of one of the expert witnesses, Mr. Farley was “medically abandoned” by his doctors.
Approximately six weeks after his initial visit to the Manchester VA, Mr. Farley suffered a second stroke. This second stroke was massive, and it left Mr. Farley with “locked-in” syndrome, meaning that he remains fully conscious, but has no voluntary muscle movement other than the very limited ability to move his eyes and his head….
…IV. Observations Regarding the Presentation of Evidence
The government presented what can only be described as an internally inconsistent case. On the issue of the likely cause of Mr. Farley’s strokes, the government’s expert witnesses disagreed with one another on the stand, and several of them openly disagreed with the government’s own pre-trial stipulations regarding cardioembolic blood clots and the recent timing of Mr. Farley’s heart attack.
To illustrate the point, whereas the government’s pre-trial proposed findings of fact sought a finding that Mr. Farley’s strokes were cardioembolic in nature, the post-trial proposed findings of fact ask the court to find that Mr. Farley’s strokes were caused by atherosclerotic plaque or a dissection. The inconsistency served to undermine the credibility of the government’s expert witnesses, as well as the credibility of the government’s theory of the case. This is particularly true when considered in light of the Farleys’ case, which was clearly presented and remarkably consistent…
I. Damages for Medical Care
Dr. Eilers and Ms. Newick were both highly credible witnesses. Dr. Eilers offered practical insight regarding Mr. Farley’s likely future medical needs based on several decades of relevant experience. His testimony was clear and succinct, and his testimony regarding the mental and physical health benefits associated with allowing Mr. Farley to move home with his family was compelling. Likewise, Ms. Newick’s testimony was highly credible, and assisted the court in understanding the issues involved in complex cost projection.
Curiously, the government effectively conceded the issue of damages and did not offer expert testimony on Mr. Farley’s future medical care. Nor did the government spend much time at trial challenging Dr. Eilers’s testimony on cross examination. Rather, at points during the trial, the government invited the court to conduct a line-by-line analysis of Dr. Eilers’s care plan, and to eliminate unnecessary expenses. For example, during closing arguments, counsel for the government stated that “[t]here are a number of things in the [care plan] that this court may well find to be more than reasonably necessary.”
The court declines to second guess Dr. Eilers’s care plan. The government offered no evidence whatsoever that Dr. Eilers was unqualified to prepare the care plan, or that a single oneof the projected expenses that his care plan contains is unnecessary. In the absence of any evidentiary guidance, it is far beyond this court’s purview to undertake a line-item vetoing exercise where the subject matter involves the necessarily sophisticated care that must be provided for a patient with complex medical needs such as Mr. Farley.
To challenge Dr. Eilers’s life expectancy projections, the government offered the deposition testimony of Dr. Kim. During his deposition, Dr. Kim discussed a report that he had authored regarding decreases in life expectancy that result from catastrophic strokes. Based on that study, Dr. Kim concluded that Mr. Farley is likely to live 3.32 years for every five years that a white male who had not suffered a catastrophic stroke would be likely to live. Although Dr. Kim’s testimony on this issue was brief, the court found Dr. Kim’s theory regarding decreases in average life expectancy for catastrophic stroke victims credible and persuasive. After consideration of the life expectancy projections offered by both Drs. Eilers and Kim, the court finds that Mr. Farley’s life expectancy is 15 years.
The sum of $1,368,710.62 is reasonable and medically necessary to cover the upfront, one-time costs of Mr. Farley’s past medical expenses, his contracture surgery, and the purchase or conversion of a home to accommodate his needs.
The sum of $12,000,000.00 in future medical care costs is reasonable and medically necessary. The court arrived at this figure by reducing the Farleys’ proposed future medical costs award of $16,580,898.00 (which was premised on a 22.2-year life expectancy) to account for a 15-year life expectancy. In arriving at this figure, the court carefully considered the individual expenses forecasted in Dr. Eilers’s care plan, as well as the annualized costs and present value figures set forth in Ms. Newick’s report.
The government asserts that the court must deduct the amount of medical benefits paid in the past from any award made under the FTCA. Indeed, “where the Veterans Administration has paid the hospital expenses incurred in connection with the injury no award is to be made therefor in a federal tort claims action.” United States v. Hayashi, 282 F.2d 599, 603 (9th Cir. 1960). The rule from Hayashi is inapposite, as the Farleys do not seek compensation for amounts previously paid by the Veterans Administration for Mr. Farley’s care. Rather, they seek compensation for amounts previously billed to Mr. Farley personally, as well as for future medical expenses…
II. Non-Economic Damages
The court turns to the question of non-economic damages. As stated by the New Hampshire Supreme Court:
No one to our knowledge has been able to devise a formula by which compensation for pain and suffering can be determined with precision. Pain and suffering are too subjective to lend themselves to such exactness. Consequently, we do not permit any formula or mathematical tool to be used in computing such damages. Steel v. Bemis, 121 N.H. 425, 428 (1981). The question is left to the factfinder, who hears the testimony and weighs the facts. Id. The goal is “to reach a just result” with such an award. Id.
The evidence of Mr. Farley’s pain and suffering from locked-in syndrome was undisputed.21 The harrowing psychological trauma of locked-in syndrome was brought home to Mr. Farley in the earliest moments after his second stroke. At the hospital, the doctors originally believed Mr. Farley was in a coma and
it. Ms. Newick’s use of that number was unsupported by the medical evidence. Although Dr. Eilers testified that he did not know exactly when Mr. Farley would need to begin treatment with a Baclofen pump, he included the cost of that treatment in his report as one that Mr. Farley would incur in the near future. Absent evidence to the contrary, the court credits Dr. Eilers’s report and includes the cost of the Baclofen pump as detailed by Dr. Eilers.
The court uses the term “pain and suffering”as inclusive of pain, suffering, mental anguish, disfigurement, and loss of enjoyment of life…. The truth was otherwise. Mr. Farley lay trapped inside his paralyzed body, lucid and mentally alive, but he could not communicate that to his caregivers and family — who were in his hospital room discussing end-of-life scenarios. Mr. Farley’s adult children did not believe he was in a coma; they thought that he was moving his eyes in an effort to communicate with them. The caregivers assured them that they were wrong and that his eye movement was merely a symptom of his comatose state. At some point, a nurse noticed that Mr. Farley’s eyes were tracking her as she walked in and out of his hospital room. The diagnosis of locked-in syndrome followed. While Mr. Farley has learned to communicate using eye movements, he remains unable to speak…
What follows is a brief, bulleted summary of some of the evidence that Mr. Farley presented concerning his pain and suffering:
Mr. Farley’s locked-in syndrome is permanent. Although the stroke left Mr. Farley all but completely paralyzed, the evidence established that he can still feel pain, pressure, numbness, and other sensations. By way of example, Mr. Farley knows when he is going to defecate and urinate, but he can do nothing about it.
Mr. Farley has painful contractures of his upper and lower extremities. His elbow, for example, is contracted 90 degrees. His hands are fisted in a position that cause his fingernails to dig into his palms, causing him pain. His legs are also criss-crossed as a result of these contractures, which prevents him from sitting without pain, and renders him unable to sit in a wheelchair for any more than a short period of time.
Mr. Farley has two feeding tubes and a tracheotomy. The tracheotomy is a tube in Mr. Farley’s throat through which he breathes. When there is build-up in his tracheotomy, he regurgitates sputum. He must always wear a bib or towel around his neck to catch the discharge. As described by Dr. Eilers: “If he’s choking, he has to hope that they come quickly because he can’t yell, ‘I’m choking.’ He’s basically unable to control his world environment at all.”
For the four years preceding trial, due to the challenges his current caregivers face in transporting him, Mr. Farley has not been taken outside except for transportation related to medical visits. Due to the distance between his current placement in Pittsfield, Massachusetts and Keene, New Hampshire, where his family lives (up to a six-hour, round-trip drive), Mr. Farley does not see his family very often.
The damages award for Mr. Farley’s future medical care includes the cost of certain surgeries and home care that will reduce his pain and suffering. For example, the award includes the cost of surgeries to correct his joint contractures. The court’s award for pain and suffering thus takes into account differences between his past pain and suffering and the anticipated relief to him in the future due to the medical care he will receive pursuant to the medical care award.
Mr. Farley’s family testified about Mr. Farley’s life before the second stroke. Mr. Farley loved the outdoors. He hiked with his dogs almost daily; he loved to fish; he camped regularly; and more than anything he enjoyed spending time with his family and especially his children. Mr. Farley’s children, Kimberly-Rae and James, testified about how active and present Mr. Farley was as a father.
The testimony of Kimberly-Rae, about how her relationship with her father and the way in which he encouraged her to accomplish whatever she set her mind to, was particularly compelling. Mr. Farley’s loss of enjoyment of life has been, and will continue to be, profound…
The court has evaluated the government’s objection to the Farleys’ request for a total of $17,000,000.00 in non-economic damages. In the court’s view, the non-economic damages award the Farleys seek is unreasonably high. After careful consideration, the court finds that Mrs. Farley, on behalf of Mr. Farley, is entitled to non-economic damages in the amount of $8,100,000.00. The court finds that this sum is reasonable in light of the evidence offered at trial and the complete record in this case.
This list of comparator awards for injuries similar to locked-in syndrome contained total verdicts as high as $121,000,000.00, however, it was impossible for the court to discern what portion was allocated for pain and suffering for many of those awards. Thus, the court disregarded any ambiguous figures for comparison purposes.
Included in the $8,100,000.00 figure is $100,000.00 in loss of consortium damages for Mr. Farley…
Finally, the court finds that Mrs. Farley, individually, is entitled to $100,000.00 for loss of consortium. For the same reasons as those described above, the court declines to award Mrs. Farley the full $1,300,000.00 that she seeks.
III. Form of Award
The government has filed a motion seeking an order requiring that the future medical care award be placed in a reversionary trust, funded by the government where the remainder of the trust would revert to the government in the event that Mr. Farley dies before he has spent the full amount of his award for medical care. Mr. Farley objects, arguing that a First Circuit case, Reilly v. United States, 863 F.2d 149 (1st Cir. 1988), prohibits such reversionary trusts. The court disagrees with Mr. Farley.
In Reilly, the First Circuit held that a court did not have the power to order the government to pay an FTCA damages award in anything other than a lump-sum payment. 863 F.2d at 170. The government argued that the district court erred in not requiring the future medical damages to be awarded via a structured, periodic payment (such as an annuity). The First Circuit held that payment of damages in installments was not permitted under the FTCA. Once the government makes a lump-sum payment, however, the First Circuit made clear that a district court has an obligation to protect the intended beneficiary of that award, particularly where, as here, it goes to a third party on behalf of the injured plaintiff. The First Circuit explained:
When a tortfeasor loses at trial . . . it must pay the judgment in one fell swoop. After the wrongdoer and its funds have been parted, the focus shifts: it cannot be doubted that the court has power (1) to ensure that the recovery benefits the victim, and (2) to exercise strict supervision over investment and use of the funds if the victim is a legal incompetent or otherwise in need of protection. But these verities in no manner support the proposition that the wrongdoer has a right to pay in installments where the plaintiffs are unwilling. Nor does the court have a right to impose a periodic payment paradigm on the parties, over protest, solely to ease the tortfeasor’s burden or to suit some fancied notion of equity.Reilly, 863 F.2d at 170.
The court intends to order the government to place Mr. Farley’s entire medical care award into a trust administered by a person completely independent of both the government and Mr. Farley’s relatives. A trust where the government has no control over the administration, but retains only a reversionary interest as the remainder beneficiary (in the event of Mr. Farley’s premature death) may well serve the best interests of Mr. Farley. Such an arrangement would maximize the possibility that the corpus of the trust would be used to provide Mr. Farley with the best care as soon as possible. This is especially important in Mr. Farley’s case because his need for home health care is urgent, and the early, upfront costs of his care plan (as drafted by Dr. Eilers), which are largely directed to the goal of bringing Mr. Farley home, are substantial, amounting to well over $1,000,000.00. A trust from which the corpus reverts to the government minimizes any incentive his caregivers might have to drag their feet with regard to incurring those expenses.
Conclusion
The clerk of the court is instructed to enter judgment against the United States in favor of Mrs. Farley, on behalf of Mr. Farley, in the amount of $21,468,710.62, and in favor of Mrs. Farley, individually, in the amount of $100,000.00. The judgment shall be paid in a lump sum. The portion of the lump-sum payment to Mr. Farley that is devoted to Mr. Farley’s medical care ($13,368,710.62) shall be placed into a trust for the benefit of Mr. Farley. The parties are ordered to meet and confer, and to file, on or before April 22, 2015, a proposed order setting up the terms of such a trust. The goal of such trust shall be to maximize the likelihood that the medical care
Attached to the government’s motion for a reversionary trust is a proposed order establishing such a trust (doc. no. 54-2). That document reads as though it were a document the government had negotiated with Mr. Farley to settle the case. It reads that way because it gives the government control over decisions related to the expenditure of Mr. Farley’s medical care award. But, of course, the government would have a clear interest in minimizing the amount spent on Mr. Farley’s medical care by virtue of its reversionary interest. While the court is inclined to approve a reversionary trust, any such trust should not give the government power to control the disposition of trust funds. The sole role for the government should be that of remainder beneficiary.award will be spent solely on Mr. Farley’s medical care during the remainder of his life and in a manner that maximizes his physical and mental wellbeing. Should the parties fail to file a proposed order that meets this goal, the court will appoint, on an expedited basis, an expert to advise the court on trust law so that the court can design a trust instrument that best protects Mr. Farley’s interests.
Pursuant to 28 U.S.C. § 2678, attorneys’ fees are limited to 25% of the judgment, which the court finds to be a reasonable fee in this case. Post-judgment interest shall be awarded in accordance with 31 U.S.C. § 1304(b)(1).25
SO ORDERED.
The complete 126 page opinion can be found at: Farley v. USA
What Causes Bad Medical Care at the VA?
There are many things that contribute to medical malpractice at the VA. They include poorly trained and over worked medical staff as well as mistakes in scheduling and follow up care.
Is it Hard to Sue the VA for Medical Malpractice?
There are many things that make it difficult to sue for medical malpractice that occurs at medical facilities run by the Department of Veterans Affairs.
Medical Malpractice at the VA
As long as the government has been providing medical care to veterans there have been some veterans who have not received medical care that meets the standard of care provided to nonveterans.