Surgical Errors During Valve Replacement Surgery

[littlejuniata]

Went in as a healthy 72 year old was told that the valve replacement would make me healthier and have more energy, was pretty darned healthy before, no chest pains or shortness of breath. Was told 5 days and I wuld be headed home. The surgeon cut my cartoid artery accidently and I nearly bled to death, resulting in my being in a coma for two months. Now nearly 2 years later, I am still far from a healtjy 180 (6 ft tall) now I am 150 and scranwy, have 50 percent loss of use of one arm, have shoulder blades that look like turn signals, have very little energy, my mental capacity has diminished. The streses my wife went through with this deal could have resulted in here being off her feet for an extended period of time and her hospitalization and medical costs where a result of my condition and the surgical errors made by the VA heart surgeon. What should I claim and for how much money?? Thanks for any and all advise.

Edited June 4, 2007 by littlejuniata

[littlejuniata]

Thanks all: The surgeon was a well known doctor, VA admitted vocally that the cartoid artery is in a different location on each person, the real fault lies not only with the accidental cut (which in the words of the lady who repaired the cut said "was so badly mangled that she had to severe it completely and go from there) the unforgivable act was not catching the fact that I was losing blood until nearly all my blood had leaked. I have waited till now to file, because VA said that It could be two years until I was completely recovered. Incident happened July 14th 2005. Chief of Surgery at VA Pittsburgh I believe was the operating surgeon

[Jay Johnson]

I think you're missing the point of what "tort" means. Basically, in order to get any real money out of the VA (for pain/suffering) you need to prove that the VA, not the doctor, is responsible for the injury, which is nearly impossible. In most cases, it is doctor error, which means you can sue the doctor and NOT the VA...this is the essence of tort law. Of course the doctor can simply write off any law suite by claiming bankruptcy, so most lawyers won't even take a case against an individual doctor because, even if you win, they, nor you, will ever see a dime of the award. However, if you can prove the injury was due to VA policy then, and only then, can you sue the VA for real money that you'll actually see (they have deep pockets).

As I said in another thread...my uncle had his bowels nicked in a VA surgery which caused the inside of his body to, essentially, rot...he lived a life of hell and died 3 years later. The doctors readily admitted it was their fault..there was a ton of paperwork showing that the doctor did indeed cut the intestine...there was NO question as to the fact that the doctor screwed up. His family lost his case hands down andhe didn't have some small-town wanna-be lawyer either...this was the top tort claims lawyer in chicago.

Edited June 5, 2007 by Jay Johnson

[Jay Johnson]

GuaymasJim,

All good points and I wasn't aware that VA doctors had the same malpractice exemption as military doctors. However, we're still talking about something well outside of what people typically think of as malpractice suites that can end in rewards over 1 million dollars. In my uncles case, there was absolutely NO dispute over fault...the doctor had admitted to my uncle, and other medical personnel, that he made the mistake. My uncle was awarded 100% compensation for the injury because the VA admitted that they caused it, but getting some small compensation from the VA and winning a lawsuite against the government are two totally different matters.

I'm curious, what do you expect to win out of this lawsuite you have? My uncle is dead and he doesn't get a dime outside of normal VA compensation....I just find it hard to believe that anyone is going to win any real amount of money in a system designed to stop people from winning money. In essence, you're fighting for lost wages and if the VA awards 100% for your claim then what wages are you losing? Medical expenses are 0 because you have free VA health care at that point, so what, exactly, can someone win in a tort claim against the VA outside of VA compensation?

Here's some stuff on federal tort claims -

The Federal Tort Claims Act, however, prohibits award of punitive damages. 28 U.S.C. § 2674. The punitive damages prohibition has been construed to mean that income taxes must be subtracted from gross income and future economic losses must be reduced to present value. Trevino v. United States, 804 F.2d 1512 (9th Cir. 1986); Shaw v. United States, 741 F.2d 1202 (9th Cir. 1984).

A discount factor must be applied in FTCA litigation as a matter of federal law. See, e.g., Colleen v. United States, 843 F.2d 329 (9th Cir. 1987); Hollinger v. United States, 651 F.2d 636, 641 (9th Cir. 1981); United States v. English, 521 F.2d 63, 70 (9th Cir. 1975); O'Connor v. United States, 269 F.2d 578, 585 (2d Cir. 1959). But see, Barnes v. United States, 685 F.2d 66 (3d Cir. 1982) ("total offset" method not punitive); DeLucca v. United States, 670 F.2d 843 (9th Cir. 1982) (addition to award to compensate for taxes on income that would be earned by investing the award).

Failure to deduct income taxes from the income calculation permits an excessive, punitive recovery in some cases. Felder v. United States, 543 F.2d 657, 670 (9th Cir. 1976); Cf., Kalavity v. United States, 584 F.2d 809 (6th Cir. 1978) (income tax need not be taken into account for persons whose incomes are in the lower range); Harden v. United States, 688 F.2d 1025 (5th Cir. 1982); Kalavity-style limitation of income tax deduction rejected). Contra, Manko v. United States, 830 F.2d 831 (8th Cir. 1987).

The FTCA bars punitive damages from being awarded against the government. 28 U.S.C.§ 2674 At one time, this bar was interpreted expansively in favor of the government and was held to bar any form of damages that was not truly compensatory in nature. See, e.g. D'Ambra v. United States, 481 F.2d 14 (1st Cir.), cert. denied, 414 U.S. 1075 (1973); (Rhode Island Wrongful Death Statute); Massachusetts Bonding & Ins. Co. v. United States, 352 U.S. 128 (1956); (plaintiff obtained compensatory damages notwithstanding whether state wrongful-death statute utilized punitive standard). Flannery by Flannery v. United States, 718 F.2d 108 (4th Cir. 1983), cert. denied, 467 U.S. 1226 (1984).

In Molzof v. United States, 502 U.S. 301, 112 S.Ct. 711 (1992), the Supreme Court liberalized FTCA damage law relating to punitive damages. In Molzof the Supreme Court took a narrower view of punitive damages and held that punitive damages should be interpreted according to the traditional, common law meaning and not to mean damages that were not purely compensatory. In Molzof the question was whether or not damages for future medical expenses could be awarded when the injured party was receiving medical care from the Veteran's Administration and whether or not the court could award damages for "loss of enjoyment of life." The District Court and the Court of Appeals held that damages for future medical expenses, when the plaintiff was not paying future medical expenses, and for "loss of enjoyment of life" were not compensatory in nature and, therefore, punitive within the meaning of 28 U.S.C. § 2674. The Supreme Court did not agree with this interpretation and held that the punitive damages prohibition of Section 2674 barred only damages that are punitive in nature and intended to punish the defendant and not damages that were not, strictly speaking, not compensatory.

Edited June 6, 2007 by Jay Johnson

[Berta]

Veterans and widows have to consider all of the options to Sec 1151 (with offset potential) and FTCA torts as well as going into the federal court system.

I helped a widow get millions years ago-after she decided to go into fed court- I helped really with just some legal pointers and how to access and utilize the medical evidence she had---and she had a good lawyer--- and this vet also got millions-his case was almost exactly like my husbands.

"VA awards $2.5 million to Air Force veteran

over failure to diagnose stroke

April 27, 2007 - The Veterans Administration has awarded $2.5 million to an Air Force veteran for failure to diagnose a stroke.

Between September 2002 and January 2003, Pedro Lassus, an Air Force veteran then working as a security guard, went to the Miami Veterans Administration Medical Center, seeking medical treatment.

During these visits, he exhibited symptoms indicating an impending stroke. By the time of his second-to-last visit on Friday, Jan. 10, 2003, his symptoms included occipital headaches, dizziness, double vision and elevated blood pressure. Despite these symptoms, he was sent home with instructions to return to the neurology clinic the following Tuesday, Jan. 14, 2003.

When he went to the neurology clinic for his appointment, his symptoms had worsened, but the staff said there was no record of an appointment and sent him home again.

Three days later, he suffered a massive stroke, resulting in weakness on one side of his body (hemiplegia) and personality changes.

He sued the U.S. government in federal court pursuant to the Federal Tort Claims Act. The Justice Department approved a $2.5 million settlement with the Lassus family in February 2007.

Manuel A. “Alex†Reboso and Peter S. Baumberger of the Miami plaintiff’s trial law firm Rossman, Baumberger, Reboso & Spier, P.A., represented Mr"........

full story at http://www.rbrlaw.com/articles.htm

There are plenty more even higher awards and plenty of FTCA claims info and settelement amounts on the net regarding VA malpractice.

The amounts of settlements depend on the circumstances and how successful one can negotiate with the VA- or with the fed court.

Edited June 6, 2007 by Berta

[Jay Johnson]

I'm not saying it is impossible; rather, it's just highly improbable. The way the system is set up, they are only supposed to award for lost wages and/or medical expenses. If the VA awards 100% than they are not losing wages (unless the VA's amount is less than their normal yearly income) and medical expenses are nil because the VA covers them (though, again, lost private insurance could mean lost medical expenses for the rest of the family). In essence, a tort claim against the US is an occupational issue, as opposed to a civilian tort claim, which is both occupational AND social. Also, one does not get a jury trial with a FTCA, so you lose the sympathy of the public.

So, this example says that the individual was paid 2.5 million (which sounds like a lot), but why was he given 2.5 mil? Could it be that they figured 20 years of employment at around 90K a year with 35K in yearly medical expenses? Probably.

In civilian tort claims one can win on pain and suffering, which is where the big payouts come and what most people think of as real malpractice suites.

My uncle lost his case because 1) The VA had already compensated him at a level above his current income level. 2) My uncle had some tax issues and owed a lot of money to the government, so he wouldn't likely be making much money for his family in the near future. 3) He had NO dependents at the time of the incident (all grown + he was divorced) 4) The VA had offered to cover his future medical expenses via his 100% rating. So, what could an FTCA do for him? The answer is nothing.....there was no lost wages and no lost medical expenses and his family was already compensated via a DIC claim.

Tha's my basic point here - You can file a tort claim and you may win, but don't go into thinking you're getting some large sum of money above and beyond your earning potential. In order to do that you need to prove that the malpractice was a matter of VA policy (IE - they instructed their doctors, VA wide, to use inferior equipment, which led to your death). In cases like this, tort may not apply and bigger money can be won. At least that's my understanding of the law pertaining to tort....

[littlejuniata]

It is just awesome that folks here spend considerable time helping others with VA procedures, A GREAT BIG THANKS TO ALL. I will be submiting my Form 95 soon.