Veterans Administration Medical Malpractice

VA's Experts Discredited, as Judge Awards $7,400,000

2005-09-08T09:37:00.000-05:00

This week a judge in Philadelphia had the courage to discredit the VA's tactics in trying to minimize the damages that were sustained in the deaths of sevearl children, who were killed by a veteran who was improperly released from psychiatric care, and shot and killed both his own children and a neighbors. The VA used the taxpayer's money to present a witness, who essentially opined that children will not advance their own social and economic conditions beyond their parents. As the judge observed "...the “law of familial regression” makes it very likely that children will not significantly surpass their parents’ educational and vocational achievements (7.30–7.32, N.T. of July 10, 2005). If the “law” of familial regression were correct — and the trial evidence underscores that this social science theory is by no means established — it is difficult to understand how human progress could ever occur. "

The Judge was unimpressed by the VA's tactics and stated "I have generally discredited the testimony offered by the VA’s experts, Drs. Jasen Walker and Brian Sullivan. "

I have posted the complete opinion on http://www.VAmalpractice.info

W. Robb Graham

VA Responsible for Shooting Deaths by Former Psych Patient

2005-07-29T07:05:00.000-05:00

Here are some key excerpts from the court's opinion, on this shocking case. The complete opinion is available on http://www.vamalpractice.info on the "cases" PAGE. What I find to be the most troubling aspect of the court's opinion, is that the Judge found that the VA's doctors changed their testimony at time of trial, and attmepted to ignore and evade testimony that they had provided earlier, whoch demonstrated that the VA was responsible for these deaths. The VA has gone to great lenghts to publicize its policy of admitting medical mistakes, unfortunately while they may admit them to the family, this case shows the lenghtss that the VA will go to avoid paying for their mistakes.

Diamond, J. July 26, 2005
On March 23, 1999, Alejandro DeJesus, Sr. shot and killed his children, Alejandro, Jr. and Felicia (ages eighteen and seven), and their friends, Michael and Aaron Faulk (ages sixteen and fourteen), and then committed suicide. The Veterans Administration Medical Center in Coatesville, Pennsylvania had been treating Mr. DeJesus since 1997 for severe mental problems - - including Intermittent Explosive Disorder - - drug addiction, and domestic abuse. The VA’s medical records underscored that Mr. DeJesus was a severely disturbed, unstable individual who was likely to commit acts of domestic violence when frustrated or unemployed. Nonetheless, the day before the murders, the VA agreed to expel Mr. DeJesus from its transitional residence and fire him from his employment there because, for no rational reason, he had attacked another resident with a knife. Remarkably, the VA agreed to the expulsion even though DeJesus’s Primary Therapist wanted him first to be evaluated by a Psychiatrist because she feared his expulsion might provoke him to an act of domestic violence.
In the instant case, the mothers of the murdered children have sued the VA, alleging that in light of Mr. DeJesus’s severe mental illness and his violent, abusive history, the VA was grossly negligent in discharging Mr. DeJesus or in failing to treat, detain, or commit him after the knife fight. Following a six day non-jury trial, I returned a verdict in favor of Plaintiffs. ...

...During their depositions, all the VA professionals who treated Mr. DeJesus admitted to facts that underscored the VA’s appalling negligence in this matter. At trial, these same witnesses strove to undo, ignore, qualify, or evade their earlier testimony. In virtually all instances, I did not believe the witnesses’ revised versions, and instead credited their deposition admissions. See Davis v. United States Steel Supply, Civ. No. 80-2571, 1981 U.S. App. LEXIS 17407, at *20-*22 (3d Cir. Sep. 24, 1981) (allowing the crediting of deposition designations and documentary evidence over live testimony); see also FED. R. CIV. P. 52(a). My factual findings are based in no small part on these and other credibility determinations.
Perhaps the most striking deficiency in the VA’s treatment of Mr. DeJesus was the failure of any VA professional to familiarize him or herself fully with the VA’s own medical history of Mr. DeJesus. For instance, Mr. DeJesus’s Primary Therapist did not know that a VA Psychologist had diagnosed Mr. DeJesus with Intermittent Explosive Disorder. A VA Psychiatrist confirmed this diagnosis, and prescribed a psychotropic drug to moderate Mr. DeJesus’s explosive episodes. A second VA Psychiatrist who treated Mr. DeJesus for depression, however, did not know of the Intermittent Explosive Disorder diagnosis or the psychotropic medication. Mr. DeJesus’s Treating Psychologist did not know that a VA Therapist had reported his concern at Mr. DeJesus’s too-sanguine description of an earlier incident, when he shot and killed an individual. As a result of this universal ignorance of Mr. DeJesus’s mental condition, no one at the VA knew just how disturbed and dangerous Mr. DeJesus was.
Significantly, trial evidence underscored that the critical decisions respecting Mr. DeJesus’s expulsion from the LZ-II facility were made by the VA itself. Although LZ-II is a privately run transitional residence, the evidence showed quite clearly that it is a VA creation, receives its funding exclusively from the VA, operates exclusively on VA property, and exists solely to serve VA patients. No one at the VA ever informed LZ-II’s staff of Mr. DeJesus’s mental condition. On the contrary, Mr. DeJesus’s primary VA Therapist had unintentionally misled LZ-II staff, informing them that he was suffering from no mental illness when exactly the opposite was true. The VA had structured LZ-II so it would rely entirely upon the VA for all medical and psychological diagnoses and treatment. Accordingly, no one on LZ-II’s staff had medical or psychological training. My view of the evidence -- especially the testimony of the LZ-II witnesses -- leads me to find that although LZ-II staff thought to expel Mr. DeJesus after the March 22nd knife incident, LZ-II looked to the VA to determine the advisability of such action. In these circumstances, the VA effectively made the decision to expel Mr. DeJesus, as well as the decision not to treat, detain, or commit him -- decisions that had tragic consequences.
Finally, Plaintiffs presented the expert testimony of Dr. Robert Lloyd Goldstein. With a medical degree from the University of Chicago, a law degree from Columbia University, and a wealth of professional and academic experience, Dr. Goldstein is exceptionally well qualified to offer expert opinions respecting the evaluation, treatment, and detention of dangerous patients. Dr. Goldstein set out numerous instances in which the VA grossly breached the required standards of care respecting Mr. DeJesus. I found his testimony and report to be credible and compelling. The expert relied upon by the VA is an osteopath who is the Medical Director of a local Crisis Response Center. I found her testimony and report to be equivocal and far less persuasive. Yet, even the VA’s expert agreed with a number of Dr. Goldstein’s conclusions respecting the VA’s mistakes.

W. Robb Graham

VA Responsible For Shooting Deaths of Children by Former Psych Patient

2005-07-29T06:44:00.000-05:00

Here are some key excerpts from the court's opinion, on this shocking case. The complete opinion is available on http://www.vamalpractice.info on the "cases" page.

Diamond, J. July 26, 2005
On March 23, 1999, Alejandro DeJesus, Sr. shot and killed his children, Alejandro, Jr. and Felicia (ages eighteen and seven), and their friends, Michael and Aaron Faulk (ages sixteen and fourteen), and then committed suicide. The Veterans Administration Medical Center in Coatesville, Pennsylvania had been treating Mr. DeJesus since 1997 for severe mental problems - - including Intermittent Explosive Disorder - - drug addiction, and domestic abuse. The VA’s medical records underscored that Mr. DeJesus was a severely disturbed, unstable individual who was likely to commit acts of domestic violence when frustrated or unemployed. Nonetheless, the day before the murders, the VA agreed to expel Mr. DeJesus from its transitional residence and fire him from his employment there because, for no rational reason, he had attacked another resident with a knife. Remarkably, the VA agreed to the expulsion even though DeJesus’s Primary Therapist wanted him first to be evaluated by a Psychiatrist because she feared his expulsion might provoke him to an act of domestic violence.
In the instant case, the mothers of the murdered children have sued the VA, alleging that in light of Mr. DeJesus’s severe mental illness and his violent, abusive history, the VA was grossly negligent in discharging Mr. DeJesus or in failing to treat, detain, or commit him after the knife fight. Following a six day non-jury trial, I returned a verdict in favor of Plaintiffs. ...

...During their depositions, all the VA professionals who treated Mr. DeJesus admitted to facts that underscored the VA’s appalling negligence in this matter. At trial, these same witnesses strove to undo, ignore, qualify, or evade their earlier testimony. In virtually all instances, I did not believe the witnesses’ revised versions, and instead credited their deposition admissions. See Davis v. United States Steel Supply, Civ. No. 80-2571, 1981 U.S. App. LEXIS 17407, at *20-*22 (3d Cir. Sep. 24, 1981) (allowing the crediting of deposition designations and documentary evidence over live testimony); see also FED. R. CIV. P. 52(a). My factual findings are based in no small part on these and other credibility determinations.
Perhaps the most striking deficiency in the VA’s treatment of Mr. DeJesus was the failure of any VA professional to familiarize him or herself fully with the VA’s own medical history of Mr. DeJesus. For instance, Mr. DeJesus’s Primary Therapist did not know that a VA Psychologist had diagnosed Mr. DeJesus with Intermittent Explosive Disorder. A VA Psychiatrist confirmed this diagnosis, and prescribed a psychotropic drug to moderate Mr. DeJesus’s explosive episodes. A second VA Psychiatrist who treated Mr. DeJesus for depression, however, did not know of the Intermittent Explosive Disorder diagnosis or the psychotropic medication. Mr. DeJesus’s Treating Psychologist did not know that a VA Therapist had reported his concern at Mr. DeJesus’s too-sanguine description of an earlier incident, when he shot and killed an individual. As a result of this universal ignorance of Mr. DeJesus’s mental condition, no one at the VA knew just how disturbed and dangerous Mr. DeJesus was.
Significantly, trial evidence underscored that the critical decisions respecting Mr. DeJesus’s expulsion from the LZ-II facility were made by the VA itself. Although LZ-II is a privately run transitional residence, the evidence showed quite clearly that it is a VA creation, receives its funding exclusively from the VA, operates exclusively on VA property, and exists solely to serve VA patients. No one at the VA ever informed LZ-II’s staff of Mr. DeJesus’s mental condition. On the contrary, Mr. DeJesus’s primary VA Therapist had unintentionally misled LZ-II staff, informing them that he was suffering from no mental illness when exactly the opposite was true. The VA had structured LZ-II so it would rely entirely upon the VA for all medical and psychological diagnoses and treatment. Accordingly, no one on LZ-II’s staff had medical or psychological training. My view of the evidence -- especially the testimony of the LZ-II witnesses -- leads me to find that although LZ-II staff thought to expel Mr. DeJesus after the March 22nd knife incident, LZ-II looked to the VA to determine the advisability of such action. In these circumstances, the VA effectively made the decision to expel Mr. DeJesus, as well as the decision not to treat, detain, or commit him -- decisions that had tragic consequences.
Finally, Plaintiffs presented the expert testimony of Dr. Robert Lloyd Goldstein. With a medical degree from the University of Chicago, a law degree from Columbia University, and a wealth of professional and academic experience, Dr. Goldstein is exceptionally well qualified to offer expert opinions respecting the evaluation, treatment, and detention of dangerous patients. Dr. Goldstein set out numerous instances in which the VA grossly breached the required standards of care respecting Mr. DeJesus. I found his testimony and report to be credible and compelling. The expert relied upon by the VA is an osteopath who is the Medical Director of a local Crisis Response Center. I found her testimony and report to be equivocal and far less persuasive. Yet, even the VA’s expert agreed with a number of Dr. Goldstein’s conclusions respecting the VA’s mistakes.

W. Robb Graham

VA Pays Out $47,000,000 for Malpractice Claims in the First Half of 2005

2005-07-24T08:14:00.000-05:00

According to information obtained from the Department of the Treasury, the VA has paid out $47,000,000 in malpractice claims during the first half of 2005. The complete listing of claims that have been paid by the Judgement Fund can be found at www.VAmalpractice.info.

VA admits that a 21 year old OEF combat veteran died as a result of substandard medical care.

2005-07-24T08:07:00.000-05:00

The VA Office of Inspector general has issued a report admitting that a 21 year old Operation Enduring Freedom combat veteran, survived serious battlefield wounds, only to die as a result of substandard medical care at the Tampa VA. The report went on to critize the VA's handling of the release of the veteran's body to his family and the notification of the next of kin. Excerpts from this report can be found at www.VAmalpractice.info.

1151 benefits

2005-05-01T09:03:00.000-05:00

Often, when a veteran has been the subject of medical malpractice at a VA medical facility, he or she has a choice as to the remedies that they can pursue.. They can file suit against the VA for medical malpractice. The Federal Tort Claims Act, contains the procedural requirements for filing the medical malpractice claim. Essentially, the VA has the same liability for malpractice, that a hospital or doctor in the same state would have. The veteran also has the option to file for "1151" benefits which essentially allows for a service-connected disability rating, for the negligent treatment that was received at the hospital. Unfortunately, many veterans turned to their accredited services representative after their malpractice. While I believe that every accredited services officer that I've ever met has their heart in the right place, very few of them understand the differences between the benefits they can be collected under section "1151" and the Federal Tort Claims Act. In the near future, I will be placing a post on the feasibility of collecting both "1151" benefits and compensation under the Federal Tort Claims Act; however, I am going out of town and do not have time to do this today.

The thing that I want everyone to realize now is that when a veteran fills out a claim for "1151" benefits, the information contained in an application can, and will, be used by the government to calculate the statute of limitations for the medical malpractice claim. Over the last two years, my office has had to turn down several very valid medical malpractice claims, because the veteran pursued "1151" benefits and included information in the application process that made it clear that the veteran knew that he had a medical malpractice claim. I would urge every veteran who believes that they have a medical malpractice case to consult with an attorney who understands the Federal Tort Claims Act, before they choose to file an "1151" application. Most attorneys who handle medical malpractice cases, against the VA, do not charge for an initial consultation. You should remember that your accredited services officer is a volunteer who is probably very knowledgeable about the veterans benefits system, but probably hasn't got a clue as to what your malpractice is worth. The retired corpsman who is representing you in what is really a legal matter, has no legal training. You probably would not let a retired lawyer, who was a volunteer at the VA give you advice on which operation you should have. The point of this post is not to knock ASO's, I have the greatest respect for them; however, I just want to point out their limitations.

W. Robb Graham

Welcome to Veterans Administration Medical Malpractice

2005-04-30T21:27:00.000-05:00

Welcome to Veterans Administration medical malpractice.

I have decided to start this blog to try to encourage discussion on the issue of substandard medical care provided to our veterans, by the Veterans Administration. Last year the United States spent more than $200 million on medical malpractice claims from the Veterans Administration. Unfortunately, many veterans have difficulty finding lawyers were familiar with dealing with the Federal Tort Claims Act, which is the law that applies to medical malpractice claims against the Veterans Administration.
When I was on active duty, as a member of the Navy's Judge Advocate General's Corps I defended medical malpractice claims brought against the United States under the Federal Tort Claims Act. Many of these claims were dismissed, because lawyers were not familiar with the procedural requirements involved. I estimate that somewhere between 20% and 25% of all the claims that I handled for the Navy were thrown out because of some procedural irregularity on the part of the claimant. While this was good for United States, it was horrible for many individuals who had legitimate claims, but unfortunately chosen attorney who knew nothing about the Federal Tort Claims Act.

I left active duty in 1987 and went to work for a 100 attorney insurance defense firm. I tried a considerable number of trials on behalf of of insurance companies from 1987 to 1992. I learned that the insurance companies do not treat all attorneys equally. Attorneys have reputations with the insurance companies. Lawyers who have a reputation for trying cases successfully are treated for more seriously by insurance carriers, and lawyers who do not have a record of successfully trying cases. I became disgusted by the fact that legitimately injured individuals received less compensation than they were entitled to, because they had an attorney who didn't know what they were doing.

In 1992, I went to work for the lawyer who won the first million-dollar verdict in the state of New Jersey. I worked for him for seven years and tried many jury trials on behalf of individuals within injured. Due to my expertise in Federal Tort Claim Act litigation, other lawyers began to refer their Federal Tort Claim Act cases to me. Since 1992 I've handled many Federal Tort Claim Act cases on behalf of individuals with the injured by the federal government. I worked briefly for another plaintiff's firm between 1999 and 2002. I found that my own office in 2003. Currently, I spend more than half of my time helping veterans with medical malpractice cases against the Veterans Administration.

My office's web site, and my contact information can be found at www.vamalpractice.com .

If you have been the victim of medical malpractice at the VA, I would encourage you to post your story for all to hear. If you work at the VA and would like to expose medical malpractice rather unsatisfactory conditions, please post those as well. If you have had a bad experience, or a good experience, with a lawyer please let us know.

W. Robb Graham, Esq.