Veterans,
with over 20 years of experience, I can help you with
your medical malpractice case against the Veterans Administration.
If a medical error has been committed by a Veterans Administration
hospital, doctor, physician’s assistant, nurse
or health care provider, that has seriously affected
your condition, call my toll free number for a free consultation.
You
should know that medical malpractice claims against the
Veterans Administration are subject to the requirements
of the Federal Tort Claims Act. Veterans, who do not
comply with the Federal Tort Claims Act’s notice
requirements, will have their medical malpractice case
dismissed.
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Veterans
usually have a choice as to the types of benefits that
they can pursue for their injuries from medical malpractice
by the Veterans Administration. Often, after malpractice,
veterans first turn to their Accredited Services Officers
for advice. ASO’s usually
recommend pursuing benefits under § 1151, which allows
for a veteran’s disability benefits to be increased,
if he is injured as a result of medical malpractice by
the Veterans Administration. Veterans need to remember
that ASO’s are well intentioned individuals, who
are knowledgeable about the complex VA disability benefits
system, but usually do not have any training in the area
of medical malpractice. Rarely do ASOs recognize the potential
for a separate medical malpractice claim, and even more
rarely are they able to evaluate a veteran’s potential
medical malpractice case.
Frequently,
it is necessary for a veteran, to prove medical malpractice,
in order to obtain § 1151 benefits. Accredited Service Officers
usually are not able to go to the expense of having the
veteran’s medical records reviewed by an independent
expert, who can provide expert testimony, that the VA’ medical
errors were deviations from generally accepted standards
of medical practice and that the deviation, caused the
veteran’s condition to worsen, which is usually necessary,
to prove a claim for § 1151 benefits. When appropriate,
my office has provided liability reports from our client’s
FTCA case, to our client’s ASO to prove medical malpractice
at the §1151 hearing.
Many
veterans, lawyers and ASOs, fail to understand that veterans
are entitled to file claims under both the Federal Tort
Claims Act and for § 1151 benefits. It is also important for veterans
to realize that anything that is submitted as part of a § 1151
claim, will be used by the United States to help defeat
the veterans medical malpractice claim. My office is prepared
to work with you, and your ASO, to see that you receive
all of the benefits that you are entitled to, as
a result of medical malpractice, by the Veterans Administration,
under both §1151 and the Federal Tort Claims Act.
I
urge any veteran who has a malpractice claim against
the VA, to immediately retain a lawyer who is familiar
with the Federal Tort Claims Act. While I was on active
duty, in the Navy’s Judge Advocate
General’s Corps, I represented the Navy in medical
malpractice cases that were brought under the Federal Tort
Claims Act. I have handled hundreds of cases that involved
the Federal Tort Claims Act. As a veteran, I am proud to
represent veterans with their medical malpractice claims
against the VA, in New Jersey and Pennsylvania, and when
appropriate through out the United States, in conjunction
with local counsel, for those jurisdictions where I am
not admitted to practice. I have handled Federal Tort Claims,
involving medical malpractice that has occurred in more
than a dozen different states.
These are some of the Veterans Administration medical
facilities, that have provided medical treatment, that
have been involved in medical malpractice cases that my
office has handled:
For an example of the problems that face veterans
, who try to handle their own medical malpractice cases,
against the Veterans Administration, read this excerpt
from Magdalanski v. United State of America,
which dismissed the veteran’s claim, because it was
not properly presented:
On January 19,
1977, Magdalenski underwent a cholecystectomy to remove
his gallbladder at the Boston Veteran's Administration
("V.A.")
hospital. Approximately two weeks after the operation,
Magdalenski developed salmonella and, over the next two
months, underwent five T-tube cholangiograms, with the
final one indicating an air pocket. An endoscopic retrograde
cholangiopancreatography ("ERCP") was
not performed, although the procedure was available. Thereafter,
Magdalenski was admitted to the same hospital in 1980, 1981
and 1983 with abdominal pain. Examinations did not reveal
a cause for the pain. He believed that the pain was a normal
result of the removal of his gallbladder.
In April of 1988,
Magdalenski again experienced severe abdominal pain and
sought treatment at the V.A. hospital in Leeds, Massachusetts.
The attending physician diagnosed the problem as ethanol-induced
hepatitis. On October 26, 1988, Magdalenski underwent an
ERCP and sphincterotomy at the Boston V.A. hospital, during
which a one-centimeter stone was removed from his common
bile duct. This procedure was repeated in April of 1989,
and two stones were found. On May 24, 1991, a third ERCP
was performed and more stones were removed.
On November
27, 1989, Magdalenski requested in writing that the Disabled
American Veterans ("DAV") organization
file a claim for him under 38 U.S.C. §351 ("section
351"). Section 351, now codified as 38 U.S.C. § 1151, treats
as a service-connected injury a veteran's disability caused
by hospital, medical or surgical treatment furnished a veteran
by a V.A. employee or in a V.A. facility. On January 5, 1990,
a National Service Officer with the DAV, filed Magdalenski's
claim with an adjudication officer of the V.A.'s Boston office.
Several
years later, on December 22, 1993, Magdalenski filed
an administrative claim under the Federal Tort Claims
Act ("FTCA") arising
out of the same medical treatment. An FTCA claim seeks money
damages against the United States for personal injury
caused by the negligent or wrongful ] act or omission
of a Government employee while acting within the scope
of his office. The claim was denied on January 5, 1995.
Acting pro se, Magdalenski then filed a complaint with
this court. Magdalenski's earlier section 351 claim was
not acted upon until July 17, 1995, at which time it
was also denied.
Following
Magdalenski's death on June 11, 1996, his son James Magdalenski
retained an attorney and became the administrator of
his father's estate. The estate was substituted as plaintiff
on February 11, 1997. A hearing on Defendant's motion for
summary judgment was held on July 29, 1997….
Defendant
contends that Plaintiff's claim is barred by the statute
of limitations because (i) the claim accrued in 1977, long
before Magdalenski's FTCA claim was filed; (ii) Magdalenski's
letter of November 27, 1989 was not itself an FTCA claim;
(iii) even if the November 27, 1987, letter were an FTCA
claim, it did not satisfy FTCA requirements; and (iv) there
are no grounds for equitable tolling with reference to the
FTCA claim filed by Magdalenski on December 22, 1993. 1 …
…Defendant
had no obligation to inform Magdalenski that the claim he
filed in 1989 was insufficient for FTCA purposes because
of the lack of a sum certain. As described, Magdalenski's
1989 letter made a 351 claim and was neither an FTCA claim
nor notice that such a claim would be filed. Moreover, as
indicated, Plaintiff's letter accompanying his Form 95 of
December 24, 1993, reflects his awareness of the difference
between the two claims. Finally, as stated above, there is
no indication anywhere in the record that Magdalenski lacked
actual or constructive knowledge of FTCA filing requirements
or that Defendant gave him erroneous information. While the
Court sympathizes with Magdalenski's evident dismay with
the length of time it was taking for his section 351 claim
to be considered, equitable tolling can not be extended to
a claimant on grounds of personal frustration…
…For the
foregoing reasons, this Court recommends that Defendant's
motion for summary judgment be ALLOWED.
Legal Malpractice Representation and Expert Witness Testimony
Veterans, if your
lawyer told you that you had a valid claim for medical
malpractice against the Veterans Administration and your
medical malpractice case was “dismissed” and
your lawyer can not provide you with a satisfactory explanation
as to why it was dismissed, you may have a claim against
your lawyer for legal malpractice. Unfortunately, many
veterans have their malpractice cases dismissed, because
their attorney did not follow the procedural requirements
for bringing a claim under the Federal Tort Claims Act.
I am available to provide you with assistance in pursuing
your attorney for legal malpractice, or providing testimony,
as an expert witness, on the proper way to handle a Federal
Tort Claim.
Things That You Can Do To Help Improve Patient Safety
At A VA Hospital
- Make sure that everyone at the VA knows who you
are:
As simple as this seems, it is extremely important
to make sure that every person who comes in contact
with you, knows who you are and what you were there
for. The Veterans
Administration's own records show that each year the
Veterans Administration performs the wrong operation,
on about a dozen veterans, because they thought that
they were operating on veteran Smith, when in fact
someone had brought veteran Jones to the operating
room.
- Make sure that you get the right medication:
The bar coded prescription system reduces, but does
not prevent all medication errors. Even with the current
state-of-the-art computerized bar coded prescription control
system, a recent study at a Veterans Administration
hospital showed, that one out of every four veterans,
hospitalized had at least one serious medication error.
Make sure that you know what medications your doctor
has prescribed and make sure that you receive the correct
medication.
- Make sure that anyone that touches you has washed
their hands with soap or antiseptic detergent.
Your mother
was right, simply washing your hands goes a long way
to preventing the spread of disease in hospitals. The VA's own studies
have shown that many health-care providers simply do not
follow this basic hygienic practice. Various Veterans
Administrations studies have shown that between 40% and 80%
of the time, health care workers properly wash their hands. This
means that between 20% to nearly 60% of the times, hands
are not washed properly. Frequently the Veterans Administration
office of Inspector General inspections find that VA Hospitals simply
do not have soap available for the employees to use in restrooms
and the Philadelphia VA hospital, in 2005, dentists
were not changing their surgical gowns between patients,
in violation of the VA's policy.. If you see
in unsanitary practice, don't be afraid to speak up.
- Make sure that you understand when your next
appointment is supposed to take place.
When a doctor prescribes another study, such as x-rays,
lab work or MRIs, or refers you to a specialist make
sure that you understand when the doctor wants the
test conducted by, or when he expects that you will
see the specialist. Each
year many veterans fail to get timely follow up care, and
this delay in treatment adversely affects their outcome. What
this means, is that the first doctor that the veteran saw
at the VA ordered the right test, or made the right referral. Unfortunately,
the veteran’s request or referral, got lost in
the system, and the test, or referral, did not take
place until was too late.
What should have been simple to cure, when it was
first suspected, has now becomes difficult, or incurable
as a result of a delay caused by the VA’s bureaucracy. Scheduling
delays can occasionally result in disaster to the veteran.
If your doctor says that you should be seen by specialist “at
the next available appointment”, find out what that
means. Sometimes, the doctor’s definition of “next
available” may be different than the scheduling clerk’s. If
the doctor thinks that you should be seen next week,
and the scheduler thinks that you should be seen within
three months, it could affect your health. Make sure
that the doctor gives you a time frame for when the
test should be completed and that you find out what
the outcome of the test was.
- Check your medical records for inaccuracies:
Periodically you should check your medical records
to make sure that no inaccurate information has crept
into them. Virtually
all Veterans Administration medical records are now computerized,
while this has its advantages, it also has its disadvantages. Once
after an error has crept into your record, it becomes easy
for it to be repeated throughout your entire record through
the practice of "cut and paste" entries by medical
providers. This is a practice of copying the prior
entries from your medical record, into the current entry. This
allows this incorrect information to be repeated and
included as part of your record over and over, and
eventually taken for accurate by subsequent medical
care providers, who do not take the time to read your
entire medical history.
For example, the length of time that you of had symptoms
or disease, can be extremely important to your physicians. If
you up in diabetic for 10 years, that is something that your
physician should know about. Unfortunately, if the
clerk types 10 days, instead of 10 years, that entry can
easily be repeated by the next clerk or physician. If
you spot errors in your records you should tell your
doctor's about them and request that they be corrected.
- Report unsatisfactory conditions to the Veterans
Administration and to your Congressman
If you see an unsatisfactory situation or are the
subject of a medical error, report it to the Veteran’s Administration
Office of Inspector General, the Veteran’s Administration’s
Office of Patient Safety and your Congressman. The
Veterans Administration and its medical providers tend
not to be concerned about being sued for medical malpractice.
The law protects individual VA healthcare providers
from being named in law suits for medical errors. Veterans
may only sue the United States and not the individual
doctor who committed the medical error.
While many veterans understand that the lack of personal
accountability on the part of medical providers, is
part of the package of benefits that allows the VA
to attract doctors, few people realize that medical
malpractice cases rarely result in any financial loss
to the Department of Veterans Affairs. Often veterans
are pressured to not file claims against the VA, because
their doctor tells them “..if
you file a claim, we will have to cut services to other veterans…” This
is simply not true. All medical malpractice cases that result
in a payment of more than $2,500 are paid for by the Department
of the Treasury out of the “Judgment Fund”. These
payments do not affect the VA’s budget, and do not
reduce the funding available to provide medical care to veterans,
nor do they reduce the amount of funding that is available
for VA executive’s compensation and travel. The reason
why some health care providers do not want veterans to file
claims for medical errors, is that if a doctor is determined
to be negligent and a payment is made, the doctor is reported
to the National Practitioner’s Data Bank. This
is a data bank of information on health care providers
who have had claim successfully made against them,
had their licenses suspended, been disciplined by a
medical authority, or had other patient safety issues.
This data bank is not available to the public. It is
a confidential source that is used by hospitals and
state medical authorities to determine whether or not
to grant privileges to a doctor. It was established
so that doctors with bad records in one state, could
not relocate to another state, and start with a clean
slate. VA doctors, who are planning to leave the VA
for private practice, are concerned about being reported
to this data bank, because other hospitals may decided
not to hire a doctor with an extensive record of claims.
The only thing that can directly affect a VA health
care provider is VA management. Local VA management
is directly affected by VA management that is higher
than they are, in the VA’s chain of command. The VA is concerned about
its budget. Congress controls the VA’s budget.
If your Congressman is concerned about the level of
patient care that is being provided at your local VA
hospital, then the VA will be concerned about it. Contacting
your congressman is often a way to get the VA to investigate
the medical care that you have received, and make sure
that your congressmen realizes that you are not satisfied
with the level of medical care that you have been provided
with.
The VA’s OIG and Center for Patient Safety investigate
medical errors at the VA. If you report a medical error
to them, it may be reviewed by someone who is outside of
the local VA’s chain of command, and is more interested
in dealing with what happened, so that it won’t
happen to another veteran, instead of covering it up
at the local level Reporting medical errors directly
to your Congressman, the VA Office of Inspector General
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