Battles on the Home Front – Failures at VA Hospitals

Scartelli Olszewski P.C.

Weeks after we celebrated a holiday honoring members of our armed forces, another battle has begun, and these same veterans who have defended our freedom countless times are right in the middle of it.In the past several weeks, a crisis has erupted following a federal investigation of hospitals run the by the U.S. Department of Veterans Affairs that revealed a disturbingly common practice of federal employees manipulating patient’s electronic health records in order to create the false appearance that the regulatory guidelines were met in terms of appointment wait times. Federal investigators found that employees at some VA hospitals regularly have been altering patient logs and records to cover up the reality that our war veterans have been waiting an extraordinarily long time for appointments at VA hospitals. This fraudulent and reprehensible behavior even has cost some veterans their lives due to healthcare issues that could not “wait” while appointments were being delayed.

As citizens, we must demand that our political leaders hold these perpetrators accountable and fix this severely broken system. As for the hundreds and perhaps thousands of veterans who became sicker and even lost their lives during the delays, what recourse is available to them and their families? You may be shocked to know that victims of medical malpractice at the federal level, such as with these cases in the VA health systems, are not afforded the same rights as private citizens who are injured at the hands of negligent doctors, nurses, and hospitals in the private sector.In the private sector, victims of medical malpractice often can sue negligent healthcare providers in state court and try their cases before a jury of their peers. In instances where the malpractice involves particularly outrageous conduct, punitive damages may be available. Punitive damages are unique and are not designated to compensate for the harm suffered by the injured patient, but rather are designed to “punish and deter.” The ultimate goal is to punish the wrongdoer for the conduct and to deter similar conduct by this person and other individuals in the future. Indeed, the threat of civil liability and punitive damages, which are not covered by most malpractice insurance carriers, promotes safer care for all patients.On the other hand, veterans injured by medical malpractice must follow the Federal Tort Claims Act (FTCA), which may limit their potential for a full and fair recovery. The FTCA allows veterans injured by federal employees’ negligent acts to file a civil lawsuit for their injuries. The FTCA applies to medical malpractice committed by healthcare providers employed by the military, Veterans Administration hospitals, and federally funded clinics. A medical malpractice case against a VA hospital must be filed against the United States of America. In these cases, the U.S. is the defendant and, because of this, the FTCA prohibits a trial by a jury of one’s peers. In fact, a medical malpractice case against a VA doctor or hospital must be filed in federal court, and the case is decided by a federal judge without any input from a jury. The plaintiff in this case has only one chance before one judge.

Also, unlike in state court, punitive damages are not permitted against the U.S.Also unique to the federal system, a plaintiff must first proceed through an “administrative” claim process and allow the government an opportunity to review the case, review expert witness reports, and decide whether to pay the claim before the case can even be filed. Also, unlike in state court, a plaintiff in a federal case must ask for a specific sum of money damages before even filing the suit. The specific sum claimed as part of the administrative claim can never be withdrawn and replaced with a higher amount later. This means that if a plaintiff made a claim for $50,000 and the claim was denied, thereby enabling the plaintiff to file a lawsuit in federal court, the plaintiff can never claim or receive more than that, even if facts and evidence demonstrate that the conduct by VA healthcare providers was particularly outrageous or egregious.The bottom line is that although the FTCA allows veterans to sue the United States, there are certain protections afforded to the government which clearly do not apply to private citizens and corporations. The “hammer,” so to speak, that is used to punish and deter this conduct can come only from legislative action. Whatever the fallout, ultimately, this crisis must end with clear and decisive action against these wrongdoers, or we will undoubtedly see these types of injustices happen again in the future.At Scartelli Olszewski, P.C., our lawyers are experienced in filing Federal Tort Claims Act cases on behalf of veterans against the federal government. In fact, firm founder Melissa Scartelli was a member of the trial team that produced one of the largest verdicts against the U.S. on behalf of a World War II veteran. The verdict, in excess of $3 million, was delivered by then United States Judge for the Middle District of Pennsylvania Thomas I. Vanaskie to James Marinello in Marinello v. the United States of America. In that case, justice was served. Likewise, the lawyers at Scartelli Olszewski, P.C., know how to litigate and win Federal Tort Claims Act cases against negligent federal employees, doctors and hospitals.