VA caused SCI. Need advice!

[natizma]

I need advice for how to proceed when the VA hospital appears to actually have caused an SCI injury.

My brother, a went into a VA medical center for a routine operation. Unfortunately the epidural caused a spinal hematoma which was not caught in time. He was put in ICU because he had "pain management issues". They stressed it was pain in the back, not in the leg. Anyway, the reason my brother had no pain in the knee was because he had been paralyzed. It took them 6 days to realize what had happened.

OK here is what I need advice on:

1) Getting the VA to pay for an inpatient rehab programme at a specialist SCI center. Does anyone have any experience with this?

2. Actually suing the VA for medical malpractice. Does anyone have experience with this? Is it possible?

Thanks for any help you can give.

[Veteran Advisor]

I've faced questions like yours quite often from some disabled veteran who passionately believes that VA medical care has caused him undue suffering in one way or another. Rather than point him to the “legal aid” section of the Yellow Pages, I often assume what he wants is information on filing a claim under Title 38 U.S. Code section 1151.

The 1151 statute states, in pertinent part: “Compensation under this chapter…for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected…if the disability or death was…caused by hospital care, medical or surgical treatment, or examination…and the proximate cause of the disability or death was…carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or…an event not reasonably foreseeable.”

Simply put, this means that a veteran who is injured or dies due to negligent VA medical care will be compensated as if the injury or death was service connected---a simple explanation for an extremely complicated endeavor. Prevailing on an 1151 claim is infamously difficult. Why? Because a medical “wrong” that has been committed is not necessarily “wrongful” in the eyes of the law. A physician who provides a veteran informed consent of the necessary consequences of a surgery has not breached his duty of due care simply because the veteran ended up on the unfavorable end of the risk spectrum. Sometimes, a veteran has no choice but to have a high-risk surgery, and doctors are only required to exercise reasonable care; not perform miracles. When the worst happens, foreseeable or not, it seems only fair that someone should have to pay. Unfortunately, it will not be the VA if all reasonable steps were taken to give that veteran the best possible chance of recovery despite the unfortunate outcome.

So when should a veteran pursue 1151 compensation? If you feel that your situation warrants at least consideration of a claim, first ask yourself some basic questions:

-Were you given informed consent about the procedure (prior written acknowledgment of the risks of treatment)?

-Was the alleged wrong a necessary consequence of properly- administered medical care (e.g. paralysis after a laminectomy)

-Is the wrong commonplace in the type of care administered (e.g. a dural tear during spine surgery)?

If your answer was ‘no’ to any or all of these, you then must contemplate whether the wrong substantially contributed to the outcome. Was the wrong uneventful considering adequate care was ultimately provided? And are there any identifiable residuals that were directly caused by the wrong?


Speaking of cause, the VA will often cite “natural progression” to deny an 1151 claim when the evidence fails to support a definitive theory on how the disability at issue occurred. Your best bet is to obtain a factually based medical opinion from an expert in the field involved that explicitly rules out Mother Nature or some other coincidental event as the direct cause of disability. Causation need not be proven with clear and convincing certainty although this would be ideal; only that your theory on causation is more likely than not true. To determine whether your claim is well grounded or supported by the evidence of record, you should obtain this opinion prior to filing a claim since your entire case will rest on it. And the chances that a VA doctor will give you such an opinion in writing are as good as hitting the lottery, so be prepared to seek out a reputable private physician who will need to examine your medical records and provide an objectively derived basis for his or her conclusion. A small price to pay if your claim is eventually granted.

In closing, any legitimate 1151 claim is winnable despite the aforementioned challenges. But it all starts with an objective analysis of the evidence by an expert who must reconcile the tough questions in your case. For when you have your day in court, so to speak, the evidence alone is your most persuasive advocate. ♦

[SCI-Nurse]

Where is your brother now?

There is no need, and it is extremely unlikely that the VA will pay for private sector rehab. The VA has excellent specialty spinal cord injury centers comparable to any in the private sector (including the Shepherd Center) where he can get his rehab, all his equipment needs, expert care, and his annual check-ups (plus any specialty needed admissions in the future). His local VA SCI Coordinator (social work office) should arrange for him to go there ASAP at the VA's expense for travel. He will have a designated center determined by where he lives, but sometimes it is also possible to get to one of the other centers if there is a special reason for this.

Have you talked to a PVA National Service Officer? They can be his advocate in being sure that he is rated as service connected for his spinal cord injury, since this occured in a VA hospital. This does not even require that the VA admit fault for this unfortunate injury. You can find a list of PVA NSOs here (http://www.pva.org/site/PageServer?pagename=benefits_nsos). They don't work for the VA. They work for the Paralyzed Veterans of America and their job is to be his advocate with the VA system. No cost to him...he just needs to join the PVA, which is free.

It is possible to sue the VA, although it will take a long time, is quite ponderous, and generally does not result in the same amount of settlement that you would see in the private sector.

(KLD)

[natizma]

Thanks

[quadvet]

Truly sorry about your brother's injury, and state of care he has been receiving at the VA. Not the first we've heard these reports here. Best advice is to be proactive and diligent in monitoring his care, but forget trying to change the system. Keep a journal, and get copies of all medical records as soon as possible (to make sure things are properly documented). Find allies on the SCI Ward, there are good people. Go to the head nurse regarding nursing issues, as soon as possible after problems arise. There is a Paralyzed Veterans of America (PVA) National Service Officer right there on the ward, they can be very useful. The Chief of Spinal Cord is the top of the chain on the ward, you should know him/her. Patient Advocacy can also be useful. Wish I had more for you, but the above posters are the professionals at handling this. All the best, and keep posting.

[SCI-Nurse]

See the private message I sent to you.

(KLD)

[Semper Fi]

Sorry about your problem. I use the SCI unit at Jefferson Barracks VA hospital St Louis, MO. They have an excellent caring staff in all areas.The Docs are up to date and really give a damn. If possible try to get treatment here. They have a whole building that just the SCI use.
Best regards,
Semper fi