The facts of this case were ugly - really ugly. A veteran was admitted to the Oklahoma City VA hospital for gallbladder surgery. Four days after the surgery, he wandered away from his hospital bed. Six hours later, he was found dead in an unairconditioned stairwell. August in Oklahoma is very hot, so the stairwell was literally like an oven.
The veteran had some issues. He was an alcoholic and he was experiencing alcohol withdrawal, which is no small matter. The hospital psychiatrists had been consulted but didn’t think he was a particular risk. The nurses knew he was prone to confusion. The stairwells were set up in such a way that once you went in, the door locked behind you.
In the early afternoon, the nurses noticed the veteran was missing. His phone and wallet were still by his bed. His street clothes were still in his room. VA staff called the veteran’s parents and then his sister. Finally, after several hours, a search was started and he was found in the stairwell, dead. The extreme heat of the stairwell had killed him.
The case seemed clear cut to us. We filed the administrative claim with the VA with some reasonable hope that they might resolve it without forcing us to file suit. No such luck. We filed suit. Fortunately, the Assistant U.S. Attorney (AUSA) assigned to the case recognized there were serious issues for the defense, and we got the case resolved before having to do any substantive discovery.
In the negotiation process it became apparent that the VA (not the AUSA handling the litigation) thought the case had a low value because the veteran was an alcoholic on disability. Being an old defense lawyer, I understood where they were coming from, but I also knew that it was not likely to be an effective defense. Blaming the victim almost never is – and it was especially not effective in this case. The veteran had his issues. There was no doubt about that, but no one in any hospital should ever be abandoned like he was. This veteran also had an extended family that loved him and cared very much about him. The suit was prosecuted by his sister, who stood to gain nothing. The matter was prosecuted for the benefit of the veteran’s children and his elderly parents. The sister will get no money from this settlement.
In a funny way, cases like this one renew my faith in human nature. To see family members step up to seek justice for the death or injury of their loved ones – when they really have no financial interest in the outcome – is not something we see that often. The sister and her husband did the right thing for their other family members.
Cases like this also reaffirm my confidence in the legal system, at least as it pertains to FTCA cases. The AUSA knew what he was doing. He was quite upfront and honest with me. I am fairly certain he worked a lot harder than he let on to get a reasonable resolution of this matter. Of course, he had to represent his client, the government, zealously – and he did. But part of that is knowing when you have a bad case, addressing it appropriately and, if you can do so, resolving it early on. Hence, in doing the right thing for his client – settling a case sooner rather than later – he was also fair to the family of this veteran who died so horribly and needlessly. This is the way the system ought to work.
Had we taken this case to trial, we might have gotten more money, or we might not have gotten as much. That was a quite real risk. FTCA cases don’t have juries and one seldom if ever hears of a “runaway” Federal Judge, so there are definite upside limitations of damage awards, especially in cases like this where there are no economic damages. What is certain was that moving toward trial would have raised the litigation costs significantly. The matter would have been delayed and the family’s uncertainty extended. This is a settlement I feel good about – and I feel good about it for the right reasons.