RESIGNED: Eric Shinseki, center, seen here in 2013, resigned on May 30 as the secretary of the U.S. Department of Veterans Affairs amid widespread criticism of the delivery of care to veterans. (AP / Carolyn Kaster)
In accepting the resignation of Department of Veterans Affairs Secretary Eric Shinseki, President Obama on Friday said “too many veterans now are receiving care who deserve better” and that “the number one priority is making sure the problems get fixed.”
Problems with the quality of care for veterans predated Shinseki’s tenure, a National Law Journal analysis of court records shows. Over the past 10 years, the VA has shelled out about $100 million a year to settle more than 3,000 medical malpractice claims, with little change from one administration to the next.
The claims detail a wide range of mistakes—some lethal—ranging from prescribing the wrong medicine to failing to diagnose illnesses to botched surgeries. The suits are also widely dispersed geographically, indicating that problems are not concentrated in one particular hospital or region.
Shinseki stepped down after reports that some veterans had to wait weeks or months for care, and that the VA hospital in Phoenix maintained a fraudulent set of records that made it appear wait times were shorter.
Members of Congress were quick to proclaim, as Darrell Issa, R-Calif., put it, that “it is our duty to ensure that no veteran is ever subjected to excessive wait times or substandard care.”
But the malpractice suits show that allegations of substandard care, at least in some instances, are nothing new for the VA and shortcomings can be systemic.
For example, in one of the few cases to go to trial, U.S. District Judge I. Leo Glasser of the Eastern District of New York wrote a scathing opinion detailing the care that Warren Jupiter, an Army veteran, received from the VA hospital in Manhattan and the St. Albans facility in Jamaica, N.Y. over a two year period.
The case record “reeks with the foul odor I would imagine an infected abscess emits,” Glasser wrote in a 35-page decision issued on December 20, 2012. Jupiter, who was obese, had weight reduction, or bariatric surgery in 2003, but Glasser found the surgeon removed a portion of the stomach that should have been left in place, a decision which he called “mindless.”
Jupiter was discharged from the hospital with a severely elevated white blood cell count—an indication of an infection—but there was no attempt to determine the cause. At St. Albans, nurses neglected to record his temperature for weeks. It took several months for VA doctors to realize he had an internal gastric leak from the surgery, a delay that Glasser found “inexplicable.”
Jupiter couldn’t eat, then couldn’t walk, developed “horrific” black bedsores, had a catheter and urine bag “which would not be timely emptied, overflowed and left a urine soaked floor,” lost the use of his arms and finally died in 2005. The case settled in February for $4.5 million.
The VA this year has settled 68 federal trial court cases brought in 42 venues, from Maine to Southern California. The biggest number of settlements—five—were in the Northern District of Georgia, home of the Atlanta VA Medical Center, which provides coverage for 130,000 veterans.
Although the VA medical center in Phoenix has been a lightning rod for criticism—Shinseki, in one of his lasts acts as secretary, fired the hospital’s leaders—Arizona was one of the less active jurisdictions. Only two Arizona malpractice cases have been settled this year, and three in 2013.
One of the cases was brought by the widow of a veteran who died of a heart attack while waiting for care from the Phoenix Veterans Administration medical center. The man, Leonard Kitzinger, was diagnosed with reflux, although his blood pressure was high—181/85— his electrocardiogram was abnormal and a chest X-ray indicated “atherosclerotic changes” to his heart, suggesting hardening and narrowing of his arteries.
After more than six months without improvement, a doctor recommended a cardiac stress test, but Kitzinger was told it would be seven weeks before the first appointment was available. He died of a heart attack a few days later.
“If his heart condition had been recognized and treated in a timely fashion … there’s not much doubt Mr. Kitzinger could have survived,” Brewster Rawls of Rawls McNelis & Mitchell Rawls, who represented Kitzinger’s widow, said in an interview. The case settled for $800,000 earlier this month.
The VA is on track to spend more than $150 million on settlements in 2014, based on payments during the first five months of the year. If so, it will be second only to 2012, when the VA spent more than $180 million on malpractice suits, according to records in the Judgment Fund, a Treasury Department database of government payments to resolve lawsuits.
Eight of the payments this year have been for more than $1 million. The biggest payment—$10.4 million—went to a Colorado veteran who had what should have been routine surgery for an anal fistulectomy at the VA Medical Center of Denver in 2003. David Bethel suffered “significant” brain damage after a series of anesthesia mishaps.
U.S. District Senior Judge Richard Matsch of the District of Colorado, pointing to the “systemic failure of the institution,” ruled that the government owed more than $10 million in damages and that one doctor, who was not a VA employee, owed $2.2 million.
Another case now on appeal involves a veteran, Stanley Laskowski, III, who sought treatment for post-traumatic stress disorder at the Wilkes-Barre Veterans Affairs Medical Center in Pennsylvania. The facility “provided inappropriate medication and failed to provide psychotherapy,” wrote U.S. District Judge James Munley of the Middle District of Pennsylvania in a 2013 decision.
“Despite [Laskowski’s] condition not improving, and plaintiff continually contacting the VA to complain about his symptoms, the defendant never devised a coordinated plan to address his PTSD. As a result the plaintiff suffered harm and is now disabled from working.”
Munley awarded Laskowski $3.7 million. Still, he cautioned that the case “is very fact specific and our holding applies only to this plaintiff. Our decision should not be interpreted as a sweeping criticism of the care that the defendant provides to the nation’s veterans in general.”