Virginia Medical Malpractice Law Newsletter | Summer 2015

 

The Department of Veterans Affairs has been in the news a lot lately about poor medical care provided to veterans at its facilities.  If a client has approached you about a potential case against the VA based on negligent care by its employees, then you will need to be familiar with the Federal Tort Claims Act (FTCA). 

 

The FTCA creates a limited waiver of the government’s sovereign immunity for common law torts.  Taking advantage of that waiver, however, requires following the FTCA’s requirements and knowing its limitations.  Here are just a few of the important provisions with which to become familiar:

 

1.    The plaintiff/claimant must submit an administrative claim (typically using “Standard Form 95”) to the Department of Veterans Affairs within 2 years of accrual of the claim.  (The government must actually receive it within that time.)

 

2.    The government has 6 months to respond to the claim before the plaintiff may file suit (unless the government formally denies the claim before then).

 

3.    If the government denies the claim, the plaintiff must file suit within 6 months.

 

4.    The proper defendant is the “United States of America,” not individual VA employees or the agency.

 

5.    The FTCA does not apply if a VA employee was not acting within the scope of his office or employment.

 

6.    The FTCA does not apply to government contractors.

 

7.    The case will be in federal court.

 

8.    The plaintiff is not entitled to a jury trial; a federal judge will decide the case.

 

9.    Virginia’s cap on damages in medical malpractice cases applies.

 

10.  The plaintiff generally cannot recover more than what he asks for in the claim stage.

 

11.  Punitive damages and prejudgment interest are not available.

 

12.  Attorney’s fees are capped at 20% for cases resolved at the claim stage and 25% once suit is filed.

 

13.  If you successfully resolve the case, be prepared for the check from the government to arrive slowly.

Once you master the technical aspects of the FTCA, trying the underlying case is not much different than any other.

 

If you have questions about the FTCA and how it may apply to your case, we would love to hear from you.

We have handled a lot of claims against Emergency Room physicians over the years and the vast majority of those cases result from the following failures by the ER doctors and nursing staff:

 

1.       Failing to record an adequate history: This includes a history of the current illness or injury, current medications, previous medical treatment, and family medical history.  A detailed history can uncover important conditions such as acute coronary syndrome, aortic aneurysm, myocardial infarct, and anti-coagulation therapy.

 

2.       Failing to perform an adequate physical examination: This is one of the most common shortcomings in the ER.  For example, failing to perform a neurological exam in a headache patient; failing to examine the mental status, neck, and skin in a febrile infant; and failing to document the presence or absence of a pulsatile abdominal mass.

 

3.       Failing to consider a differential diagnosis:  The chart should reflect a list of potential conditions which could be causing the patient’s complaints.  Each potential cause or explanation should be “ruled out,” starting with the most serious first.  Too many ER doctors latch onto a cause or diagnosis which ultimately proves incorrect.

 

4.       Failing to request appropriate consultations:  ER doctors are not radiologists, infectious disease experts, orthopedic surgeons, or radiologists, etc.  However, they have almost immediate access to these specialists but often fail to avail themselves of the specialized knowledge provided by available consultants.

 

5.       Failing to admit the patient to the hospital: I cannot count the number of cases we have handled over the years where the ER doctor fails to correctly diagnose the underlying medical problem causing the patient’s pain or symptoms, discharges the patient home with directions to see his/her primary care doctor the following week, and the patient dies within hours or days after arriving home.

Ask anyone who handles nursing home abuse and neglect cases on behalf of families whether elderly patients are overmedicated, and the answer will be a resounding YES.

Ask a nurse at a long term care facility whether patients are overmedicated and the answer will be NO – they need the medications to keep patients in their rooms, or in bed, or in their wheelchairs, quietly resting.

A recent study performed by University of Michigan Geriatric Psychiatrist Donovan Maust comes to a more balanced conclusion, that while doctors may be trying to do their best, seniors living at home and not in long term care patients, may also be getting too many psychiatric medications, and non-medication approaches are often being ignored. The study also finds these medications are especially dangerous for dementia patients. 

 

Are all drugs dangerous? No.

Could these medications be dangerous for your loved one? Absolutely.

The American Geriatrics Society has long offered the following advice to physicians treating elderly patients:  

So why then do we see these medications so often being given to seniors in long term care facilities? Wouldn’t we all agree having to leave your home for a nursing home would be discouraging and depressing? And wouldn’t we all agree that if a nurse has to care for 30 active residents but she could ask the doctor to medicate 15 of them then her job could be easier?

Wouldn’t we also agree that the doctors who prescribe these should also be present in the facility to determine what the short and long term changes and effects are?

So I ask the question again – are our seniors being overmedicated? Yup. They probably are. And the long term care system doesn’t provide much accountability for injuries and deaths caused by these medications. 

Instead, we need family members to be advocates and question whether these medications are right for their loved one. Then ask again – and again, just to make sure.