Last week we had one of those sad encounters that are very frustrating in our business. An Iraq war veteran and his wife were referred to us by another law firm. The man has a rare but quite genuine medical condition which has already destroyed much of his life - and which is certain to get worse in the future.
The care he got from multiple VA facilities was not great, but neither was it heinously bad. There were certainly indications that the healthcare providers were indifferent and there was likely some delay in diagnosing his condition, but there was no smoking gun so to speak. While it makes a case harder to prosecute when there is not a “clear whiff” it does not make it impossible. We have taken plenty of cases where the negligence was subtle or debatable.
The problem in this case was that we could not show that an earlier diagnosis would have mattered. In a claim or lawsuit, you must show that there was negligence, and you also have to show that the negligence caused harm. Without both, there is no case. We are lucky to have a physician-lawyer at our firm, Ray Rodriguez, as well as several nurses. We are also skilled at reviewing records and analyzing available medical literature. Our initial review revealed that an earlier diagnosis would not have mattered (at least legally speaking) because this rare condition had no effective treatment.
Looking at the case, I thought that there must be something we could do. My internal experts and experienced colleagues said no. I decided to re-review the file personally. Now, the typical “lawyer as hero” story would have me finding some key record or evidence that was missed by others - meaning that we would have a strong case against the VA and be able to get a good recovery for this family. God knows they needed it. Alas, that was not what happened. I reviewed the file again, talked to my trusted co-workers and concluded that we really could not do much for this veteran. We would just not be able to show that an earlier outcome would have helped him. Even if he had been diagnosed when he should have been, the likelihood was that he would still be in the same condition that he is in now.
I called the veteran and his wife myself. Not surprisingly, they were not happy, but they were polite. It was not an easy call. For all the lawyer jokes and for all the crass (but often deserved) commentary on the profession, on some level most of us went into this business because we want to help people. A sad reality is that we cannot help everyone. We might wish that we could, but we are always limited by the facts and law applicable to any given situation. In an FTCA malpractice case all we can do is try to get someone a monetary award based on the negligence of a government healthcare provider causing harm to a patient. If we don’t have both negligence and damage caused by that negligence, there is no case - no matter how heartbreaking the circumstances might be.
Sometimes people get mad at us when we decline to take their case. Their frustration is understandable. However, it does no one any good for us to take a case where we are not likely to be able to get a recovery for our clients. Obviously, we do not get a fee, but worse is the fact that taking un-winnable cases at best gives clients a temporary false hope. And that is a terribly unfair thing to do. Painful as it frequently is, being straight with those who come to us is a classic example of “honesty is the best policy.” Telling someone what they want to hear now will only make the later bad news even harder to take.