Attorney for Medical Malpractice Cases Against the VA

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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.Click here for detailsVeterans 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 TestimonyVeterans, 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 HospitalMake 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 Click here for details © 2003 The Law Offices of W. Robb Graham, LLC • 856-786-5050 • contact us disclaimer