Claims of Progress at VA Hospitals Suggest Pervasive Past Violations of Duty of Care

According to the Associated Press (AP), the Department of Veterans Affairs has significantly increased the rate of referrals of veterans to private medical providers.

This is apparently in response to the lengthy wait times that veterans face in receiving medical care and, more precisely, to the scandal associated with the falsification of records related to the wait times.

This is good news, but a lot was not addressed. Some statements are more alarming than reassuring. It suggests pervasive and systemic medical malpractice in the VA Healthcare System. It raises issues concerning violations of the duty of care under the New Mexico Medical Malpractice Act.

Recent Referrals to Private Doctors

The AP reports that the VA has made over 800,000 referrals to private doctors over the last two months. Great, right?

So what was happening to those patients before these referrals were being made? One particularly problematic issue raised by the article is the severe shortage of doctors at the VA. Presumably, this would include a severe lack of specialists.

Shortage of Doctors at the VA – Not Just Wait Times Implicated!

The new VA Secretary, Robert McDonald, threw out a couple of numbers on the shortage of healthcare workers at the VA.

He stated there that the Phoenix VA Hospital was short “1,000 new doctors, nurses, and clerks”, and the VA Hospital in Las Vegas was short another 500. Project those numbers across the U.S., and these are monumental deficiencies.

And although one must give the new Secretary some acknowledgment for his efforts, these shortages far predate the present situation. Moreover, Veterans and their families have suffered for years, if not decades, not just from long wait times but what must have been severely deficient care even for those lucky enough to get in to see a doctor.

Medical Provider’s Duty of Care Under New Mexico Law

These wait times and shortages bring up many issues suggesting medical negligence. We will touch here on only the most glaring and evident under New Mexico law, which would govern medical malpractice claims against the Albuquerque VA Hospital (which incidentally has been singled out with severe issues, an honor seemingly challenging to achieve in a hospital system that many have characterized as systemically negligent).

Once one reviews the New Mexico Uniform Jury Instructions (UJI) on medical malpractice, it is clear why the VA Hospital system has been characterized as systemically negligent.

UJI §13-1101 – Duty of Doctor or Other Health Care Provider

This jury instruction addresses the most basic duty of care for healthcare providers. The instruction states:

In treating, operating upon, making a diagnosis of, or caring for a patient, the medical provider is obliged to possess and apply the knowledge and to use the skill and manage ordinarily used by reasonably well-qualified doctors or other health care providers practicing under similar circumstances… A doctor or other health care provider who fails to do so is negligent.

It seems pretty clear that no doctor would engage in some VA practices that have come to light.

UJI §13-1104B – Duty to Inform

This jury instruction seems particularly problematic for the VA Hospital in what likely will be a wave of medical malpractice lawsuits associated with its practices.

The jury instruction states that the doctor or medical provider has a “duty to communicate to the patient …  that information which a reasonably prudent patient under similar circumstances would need to know about:

1. the patient’s condition; [and]

2. the alternatives for treatment; [and]

3. the inherent and potential hazards of the proposed treatment; [and]

4. the likely result if the condition remains untreated.”

Chances are all of these were violated for many given patients. Most certainly, #4 was broken as thousands of Veterans’ medical conditions were left untreated; it appears evident that the risk of failure to treat promptly was not discussed with these Veterans.

UJI §13-1103 Duty to Inform Patient of Need for Another Doctor

This is where it starts getting very interesting. Let’s begin with the fact that the VA Hospital has an annual more than $150 billion. Yet, they maintained a staggering shortage of healthcare personnel and failed to make private referrals until the recent scandal.

The jury instruction is short and to the point:

If a treating doctor knows or should know that a doctor with other qualifications is needed for the patient to receive proper treatment, the treating doctor must tell the patient.

As mentioned, the shortage of doctors suggests a relative lack of specialists. This begs the question of where Veterans with severe medical conditions were being referred. It gets to the essence of UJI §13-1103 and how VA doctors might have met this duty.

Did the doctors fail to indicate the need for specialized care, or did they say you need it but can’t have it? There is a duty to inform the market and make the referral. Without the actual referral, the communication of the market is rendered meaningless.

UJI §13-1102 Duty of Specialist

This jury instruction is equally essential for the care of Veterans. Unfortunately, it likely often did not come into play since the Veterans were not promptly getting to the specialist.

To keep it simple, a specialist has the duty:

 “To possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified specialists practicing under similar circumstances, giving due consideration to the locality involved. A doctor who fails to do so is negligent.”

Where the Rubber Meets the Road – Accountability for Harm to Veterans Caused by Medical Negligence

The real test of the new VA Secretary will be in the policies and practices implemented to compensate Veterans who have been harmed due to the systemic negligence in the VA Healthcare System.

This is where the rubber meets the road, as they say. Veterans and their families need to be compensated fairly for the injuries caused by VA negligence.

It remains to be seen whether this will be done. However, if the past is any indicator, the posturing now is pure rhetoric, and when it comes down to it, if left to the VA, the Veterans and their families will be left to carry the burden.

Seek Legal Guidance!

It seems almost self-evident that a Veteran should not take on the VA alone. This is never more true than in the case of a medical malpractice claim against the VA Hospital.

Medical malpractice claims are complex under the best of circumstances. Claims against the VA are far from the best of circumstances. Many unique rules and deadlines are associated with claims against the VA Hospital.

These claims are governed by the Federal Tort Claims Act, which is premised (or would appear to be to those cynics among us) on the protection of the government, not the injured citizen. Many would agree that this applies particularly to injured Veterans.

Seek the assistance of an experienced medical malpractice attorney as soon as possible after learning of harm that may have been caused by VA medical negligence to you or a loved one.

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