A 71-year-old Marine veteran underwent elective same day surgery at the Oklahoma City VAMC. The procedure was done to address his problems with chronic sinusitis and other nasal issues. According to the records, the procedure went well, and the patient was discharged home.
Two days later he was in a private hospital fighting for his life. In the VA procedure, the surgeons had created holes in the base of this veteran’s skull. There was a cerebrospinal fluid leak and infection. Fortunately, this veteran did not die, and he made an almost full recovery - almost. Because of what happened, he was left with little sense of smell or taste. As he put it to me, he is now left “imagining” what his favorite foods taste like.
We filed a claim. The VA took the position that what happened was just an unfortunate complication. The attending surgeons had done this procedure “thousands” of times. Maybe so, but the record also indicated that a resident had done much of the surgery. We anticipated the complication defense and our expert, a well-respected academic otolaryngologist, addressed it bluntly:
Indeed, it appears that the VA surgeon who performed the procedure at issue at the Oklahoma City VA simply got lost in the anatomy during the surgery. This is clear from the operative report of that procedure in conjunction with the subsequent injuries identified on MRI and by the OU surgeons. To have breached the skull base and for that defect to have been so significant, means the VA surgeon was simply operating in a place he should not have been.
In the end, the VA was reasonable and settled the matter for $300,000. It would have been a hard case for the VA to defend although I am sure they could have found someone to say, “stuff happens.” On our end, we had to consider what a judge would award this veteran. That’s always a huge question in these FTCA cases. Evaluating this situation, we couldn’t advise the client that he was more likely to get a better net recovery if we pushed the matter further. Bear in mind, what we have to look at is the net recovery, the amount the client gets after fees and costs.
Settling the case without having to file suit is a huge benefit to the client. The fee is less, 20% versus 25% and, just as important, the expenses are markedly less if you don’t have to litigate the matter. All things being close to equal, the client’s net recovery is always going to be better if we can settle a case administratively.
As a lawyer, I can say the settlement was a decent one – for both sides really. However, the considerable sum of money our client will net will not restore his sense of smell and taste. He will never again savor his favorite biscuits and gravy. That loss has a value that defies quantification. As a lawyer, that is the sort of thing I must always remember. In medical malpractice cases, money is, at best, a very imperfect means of righting a wrong.