When the veteran and his wife came to us almost three years ago, in the summer of 2017, he was very sick. He knew – and the medical records showed – that prostate cancer would likely kill him in a few months. It did.
Tragically, the death was one which easily could have been avoided. The veteran had been careful about his healthcare. Among other things, he had regularly received a blood test which measures Prostate Specific Antigens (PSA). A rising PSA can be indicative of prostate cancer. The veteran’s PSA went up steadily for several years. His VA primary care doctor did nothing. By the time the prostate cancer was diagnosed, the veteran had wide-spread disease. It was too late.
We handle many cancer cases. One of the critical issues is almost always the length of the delay in diagnosis. A short delay often means it is nearly impossible to prove that the negligence really caused any change in the patient’s treatment options or prognosis. Here, the delay was years, meaning that it was virtually certain that if the disease had been caught when it should have been, it could have been successfully treated, likely without major complications or side effects. That the doctor ignored something so obvious was inexplicable, but the tragic consequences were abundantly clear.
We filed a claim in early August 2017. In October, we provided the VA lawyer with a report from our expert. As we approached Thanksgiving, it was clear that the end was near for our client. We contacted the VA lawyer and asked that they consider trying to settle the case now, making it clear that our client was near death. He wanted to know his widow would be taken care of before he passed. We got no response. None at all. As Christmas came near, we tried again. Again, there was no response. To our surprise, the veteran made it into January. We again prodded the VA lawyer, and again we were ignored completely.
After the veteran died in early 2018, we amended the claim to make it a wrongful death case on behalf of the widow and his children. Eventually, the VA lawyer contacted us. She apologized – if you can call it that – for not having responded earlier. She had been busy. She said. For over a year, we went back and forth giving her information – often providing the same information two or three times. All the while, the VA lawyer was telling us that it was likely we could resolve the case administratively. If we could settle the case without having to file suit, the benefit to the clients was significant. Not only would the fee be lower (20% versus 25%), but the litigation costs (experts and depositions, for example) would be far less. The clients’ net recovery would almost certainly be better.
In the spring of 2019, the VA lawyer assigned to the case was gone without explanation. A new lawyer was assigned. We had never worked with him before, but he seemed to know what he was doing. Unfortunately, one of the first things he told us was that the VA’s file was basically empty. The material provided to the first lawyer had not made it into the system. We were back to square one. Still, the lawyer was clear that he felt this was a claim which the agency would pay, and he assured us he was moving in that direction. Again, we held off filing suit. Unfortunately, before this lawyer could get everything put together and submitted for approval, he retired. To his credit, there was no surprise. He told us about his impending retirement and seemed genuinely apologetic that he couldn’t get the case resolved before he left. We certainly had the impression he had tried to get it done.
While not back to square one, we were concerned that we would go back to the end of the line with whoever the new lawyer was. Fortunately, that didn’t happen. The new VA lawyer was also very sharp and conscientious. She moved quickly and within a month after she came on the case, we had an offer. Five weeks later, we had reached an agreement to settle the case for $600,000.
Unfortunately, an administrative settlement for over $300,000 requires approval by the Department of Justice. Of course, that is a black hole and the approval took over four months. It then took almost another two months to receive the funds.
This case ended up taking almost three years to resolve. The good news is that we were able to resolve it administratively. With the lower fee and the low costs, the net to the clients was much more than it would have been even if we had gotten more in litigation. The bad news is that it took far too long to get there. There was delay after delay.
This case also reminded us that the VA has some very good and conscientious lawyers. They care about doing their jobs well and doing the right thing. Those reminders are always good for us, because, not all of VA lawyers can be described that way. The first VA lawyer on the file was an embarrassment to my profession. That sounds harsh, but in this situation, it’s hard not to be.
I’m glad this case turned out well. The clients were patient and reasonable throughout. I just wish it had moved along more quickly. But sometimes as lawyers we have to make judgment calls. Here, being patient and working with the second and third VA lawyers turned out to be the right call. However, that is only certain with the perfect vision of hindsight. We might have waited this out and still ended up having to file suit. Sometimes things work out like they should. It happened here and I am happy for it, very happy.