The federal government spent more than $180 million last year on medical malpractice claims, with the lion’s share of the payments going to settle suits brought against the Department of Veterans Affairs, according to an analysis of Judgment Fund records.
The V.A. pulled $98 million from the fund, which is used to pay for the government’s court judgments and lawsuit settlements, to resolve 456 cases, with 10 payments of more than $1 million. The biggest payment — more than $17 million — went to an ex-Marine who suffered a massive stroke after having eight teeth pulled at the Philadelphia Veterans’ Administration Medical Center. The armed forces spent more than $62 million to settle 91 medical malpractice suits in 2012, and the Department of Health and Human Services paid out $17 million for 39 claims.
The settlements are one way to "assess the quality of care provided," as the Government Accountability Office (GAO) observed in a 2011 report on V.A. medical injury tort claims. Tort claim data provide an "opportunity for VA to identify concerns with individual providers and decrease the risk of future tort claims," according to the report.
If so, the V.A. has had limited success. Judgment Fund records indicate that the V.A.’s malpractice claim payments have been steadily rising despite efforts at improving accountability and care by issuing hospital quality scorecards.
The GAO report found that in 2010, the V.A. paid about $79 million to resolve 391 cases, and that malpractice claims against the V.A. had been steadily rising since 2005. The pattern has continued — payments in 2012 represent a 20 percent increase from 2010. In an email statement, V.A. assistant general counsel E. Douglas Bradshaw Jr. said the jump is partly due to the case involving the ex-Marine, Christopher Ellison, who was represented by Kline & Specter in Philadelphia. "The noticeable increase in medical malpractice payments last year…includes an exceptionally large court judgment of over $17.5 million in a case in which the government [V.A. and the Department of Justice] did not believe there was liability," he wrote.
Other major V.A. payments in 2012 include:
• $5.732 million to a Tennessee man who went to a V.A. emergency room complaining of severe abdominal pain. He was sent home with a painkiller and medicine for heartburn, but was back three days later and needed emergency surgery for a perforated bowel and potentially deadly infection.
• $1.7 million to a New Hampshire man who became permanently blind in both eyes after V.A. doctors failed to promptly diagnose temporal arthritis, or inflammation of blood vessels to the head. "When therapy was finally administered, it was too late," the complaint by Ralph Holmes of McLane, Graf, Raulerson & Middleton in Manchester, N.H., stated.
• $1.5 million to the family of an Arkansas woman with breast cancer who came to a V.A. hospital in Fayetteville complaining of stomach pain and nausea. A doctor ordered her antibiotics, but they were not administered. The woman, a Gulf War veteran, died the next day of sepsis due to an infection in her small and large intestines.
While the V.A. paid more than any other federal agency to settle medical malpractice cases, it’s also the largest health care system in the country, serving 8.3 million veterans each year.
"When you look at the size of the system, my guess is the [V.A.'s malpractice] claims are comparable to private insurance claims," said Brewster Rawls, a name partner at Rawls McNelis + Mitchell in Richmond, Va., who specializes in medical malpractice cases. "They probably have a somewhat higher incidence of problems but a lower number of claims, because so many people have the misconception that you can’t sue the government."
To sue the V.A. for medical malpractice, a patient must file a claim with one of 22 regional counsel offices. The offices are responsible for investigating and reviewing the claims and, if appropriate, settling them. In 2012, such administrative settlements totaled $34 million. If no administrative settlement is reached, plaintiffs can proceed to federal court.
The suits are filed against the U.S. government rather than individual doctors, who are not required to carry their own malpractice insurance. "I think it’s easier for negligent physicians to hide their negligence in the military or the V.A.," said Laurie Higginbotham, a medical malpractice specialist at Archuleta, Alsaffar & Higginbotham in Austin, Texas, noting that in her practice, for example, she’s come across "an Army doctor who has moved from state to state with a terrible track record." In private practice, such a doctor with multiple malpractice claims will eventually be denied insurance coverage and forced out of the profession. "Here, there’s no check in terms of the [insurance] carrier. They’re automatically covered," she said. "It can be a problem for consumers."
One benefit for clients suing the government: Private-sector malpractice policies have coverage limits, which means that a multimillion-dollar injury may yield only a few hundred thousand dollars in recovery. With the government, she said, "You don’t have to worry if there’s adequate insurance." Instead, there’s the Judgment Fund.
The V.A. wasn’t the only agency hit with big-ticket malpractice claims. The armed forces spent more than $62 million to settle 91 medical malpractice suits in 2012, including a $25 million payment by the Department of the Navy to settle charges that an obstetrician’s negligence caused brain damage and cerebral palsy in a newborn baby. The plaintiffs were represented by Scott Perry and Thomas Mitchell of Klores Perry Mitchell (now Klores Mitchell) in Washington.
Virtually all of the $17 million in claims paid by the Department of Health and Human Services last year went to resolve suits against the Indian Health Services, with a single payment of $450,000 for a malpractice claim against the prestigious National Institutes of Health.
In 2009, about 50,000 American Indian and Alaska Natives were admitted to Indian Health Service hospitals, according to agency budget documents.
The health service’s biggest Judgment Fund payment — $9 million — came after doctors in Alaska allegedly failed to promptly diagnose and treat a baby with meningitis. The plaintiffs, represented by Kenneth Roosa of Cooke, Roosa & Valcarce and Richard Vollertsen of Atkinson, Conway & Gagnon, both of Anchorage, said the child suffered permanent brain damage as a result.
Other payments to Alaska natives included $370,000 to the family of a man who complained of chest pain and shortness of breath and was given Maalox and Tylenol. He died of cardiac arrest the next day. Anchorage solo Gregory Grebe represented his family. Another man who contracted an antibiotic-resistant infection and had to have nine toes amputated got $350,000. He was represented by Don Bauermeister, who is now of counsel at Friedman Rubin in Bremerton, Wash.
The lowest average payments — just under $17,000 apiece — went to inmates alleging medical malpractice against the Justice Department’s Bureau of Prisons. Overall, the Bureau of Prisons spent $4.75 million on 28 claims brought by inmates alleging improper care.
The biggest settlement in 2012 was for $975,000, to an inmate in Kentucky who complained of a sore, red lump in his armpit. A prison doctor ordered a "priority" biopsy, but it was not performed until 15 months later. The biopsy revealed the prisoner had late-stage lymphoma.
"His death is now a certainty," stated the complaint, filed by Sheila Hiestand of Bubalo, Hiestand & Rotman (now Bubalo Goode Sales & Bliss) in Louisville, Ky. "Defendants’ conduct was intentional and grossly negligent, indicated active malice toward Plaintiff and a total deliberate and reckless disregard for and indifference to his life."
Contact Jenna Greene at firstname.lastname@example.org.