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Forcing a Widow to File Suit Is Unfair, Very Unfair

Last week we settled an FTCA malpractice case pending in Federal court in Portland, Oregon. The resolution was a fairly modest one, $175,000. While we would have liked to get more for the client, I can’t say the amount is unfair. My complaint is the involved and expensive process we had to go through to get there. This is a case that the VA should have settled well before we had to file suit. In an FTCA matter, one has to first file a claim with the agency so it can investigate and, if appropriate, try to resolve the matter. Here, the VA received the claim and, eventually, it was simply denied. Nothing was offered. Our choice was to drop the case or litigate. We decided to stick with the client, so we filed suit.

The case involved the failure of the VA to treat a veteran’s Myoplastic Dysplasia Syndrome (MDS), a progressive and ultimately fatal blood disorder. As one might have predicted, the veteran ultimately died. MDS killed him. The only curative treatment for MDS is a bone marrow transplant (BMT). The veteran clearly needed one. His VA doctors knew he needed one. Unfortunately, right after the BMT process was started by a more experienced doctor, the veteran’s care got transferred to a new hematologist who had just started his training. The new doctor’s supervisors – the attending physicians – never saw this veteran and seemingly had no role in his care. While almost certainly well-intentioned, the young doctor clearly couldn’t shepherd his patient through the involved process for getting a BMT.

In a medical malpractice case, a plaintiff must prove two elements: First, we have to show that the care was negligent, that it fell below the “standard of care.” Second, we have to show that that negligence proximately caused a specific harm. Even on our initial review it was apparent that the VA’s care fell well beneath the standard of care. The records made it obvious that the veteran just fell through the cracks. An expert was not required to figure that out. There was no question that the VA had failed its patient.

From the start, however, the potential causation issues concerned us, especially as the applicable substantive law required us to show by a preponderance of the evidence that the patient would have survived. In other words, we needed to prove that if the veteran had been treated as he should have been and gotten a BMT, then the odds of his surviving were greater than 50%. MDS is a very bad disease and BMT’s are very high-risk procedures. We obtained a favorable review from an oncologist, but it barely got us over the 50% threshold. Moreover, our expert was a general hematologist-oncologist. While such doctors do treat MDS – and our expert was certainly more qualified than the young hematologist who treated the veteran – he did not have a special focus of blood diseases like MDS requiring BMTs.

The Assistant United States Attorney defending the case was professional and fair. In particular, I appreciated the courtesy and respect she showed to the widow. When we got to the mediation last week, we learned that her expert was a high-powered academic blood disease expert. This was exactly what I had feared, but at the same time I had to give her credit. She had defended the case pretty much as I would have done – and in my earlier life I defended a lot of cases just like this one. Indeed, when I wrote up a brief synopsis after the settlement, I noted that she was probably the best AUSA with whom we had dealt. She did her job and did it well. The mediator, James Pippin, also did a great job. I was super impressed by him. I would also say he was one of the best mediators I have encountered. With his help, we got the case resolved. My client was happy with the outcome and appreciative of our efforts. By the way, a happy client means a lot to us lawyers, more than we might like to admit.

So, what is my complaint in this whole process? I had no problem at all with how my opposing counsel defended the case. We had an excellent mediator. The court is a reasonable one. My issue – and it is a big one - is that we never should have had to file suit in this case. The veteran received poor medical care. There was no question about that, and it was plain as day from the start. Sure, it would have also been apparent that there were likely to be tough causation issues for the plaintiff. But a reasonable attorney reviewing the matter for the VA should have also appreciated that skilled lawyers, in fact, could make a reasonable causation case – as we did. The case should have been settled over a year and a half ago when it was still pending with the agency.

The case would have been worth about the same a year and a half ago as it was last week. The delay is bad enough, but the impact on the widow is a lot worse than just having to wait. Because of the increased fees (25% versus 20%) and markedly increased litigation costs (experts, depositions and other expenses), she will probably net $45,000 to $55,000 lessthan if the case had been settled administratively. That is quite a lot of money and as she has had almost no income since the death of her husband, it would make a big difference in her life.

Sadly, we see this sort of situation all the time. Either by outright denial or gross delays, the VA essentially forces cases into litigation that clearly should have been settled administratively. The claims process exists so that cases which should be settled get settled. The VA should do what it is required to do: Evaluate cases appropriately and resolve the ones that need to be resolved. At best, the VA’s history is hit or miss. The veterans and their families are the ones who suffer. It’s not right.


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