WASHINGTON — Although it seems certain that VA hospitals offered substandard care to veterans, some of whom died while waiting months for treatment, getting compensation in court is likely to prove a tough fight for the stream of veterans and survivors expected to sue the government in the coming months.
“If you give people the impression that this is easy, they’re going to be real frustrated,” said Ronald Abrams, joint executive director of the National Veterans Legal Services Program. “It’s combat — the VA is not playing nice, because you’re in court and it’s an adversarial process.”
Outrage over a growing scandal that cost Department of Veterans Affairs Secretary Eric Shinseki his job increased after a testy Congressional hearing Wednesday, where congressmen sparred with acting VA Inspector General Richard Griffin over whether delays in care were responsible for patient deaths and whether VA officials influenced the IG’s office to soften its report. A doctor working for the IG, under intense questioning, acknowledged that the delays could have contributed to the deaths.
This was touted as a reversal by House Veterans Affairs Committee chairman Rep. Jeff Miller, R-Fla.
“The confirmation from IG officials today that delays in VA medical care contributed to the deaths of Phoenix-area veterans and IG officials’ admission that they couldn’t rule out the possibility that delays caused deaths changes the entire bottom line of the IG’s Phoenix report,” he said in a press release.
An IG spokeswoman refuted that notion Thursday, pointing out that the language of the report never ruled out a link.
“As Mr. Griffin stated at the hearing, delays may have contributed to patient deaths or they may not have contributed to patient deaths,” VA IG spokeswoman Catherine Gromek said in an emailed response. “We have never wavered from our statement that we could not conclusively prove that delays caused the death.”
But while much of the debate swirling around the language of the report seems to be about semantics and headlines, Abrams said it could be important in the courtroom, where the question of whether delays in care are the equivalent of medical negligence could be key.
“You’re going to have to show by a preponderance of evidence that VA delays more likely than not caused their death, which is a high standard,” he said.
And some cases may never make it to the courtroom. The first step in any federal tort claim is an administrative process, in which the VA can make a settlement with the litigant if they determine the veteran was harmed.
What the IG said or didn’t say about the connection between care and deaths may have more of an impact on the decision to approve administrative settlements, but is likely to be less important for claims that go to trial, said Karl Protil, Jr., an attorney who works on tort cases and also served five years as a lawyer in the Army JAG Corps.
“Absolutely, it would come up later, but all medical cases turn on expert opinions and the fact that there is an inspector general’s report or another report that comes up with a finding – you still have to prove that there was a link,” he said.
The scandal started with revelations that Phoenix VA Health Care officials had created a secret wait list and falsified data in order to make it look like patients were getting prompt care, when many were languishing for months or more without getting appointments. Soon, though, it became clear that the problems were national and now new VA Secretary Bob McDonald is scrambling to enact reforms.
Lawsuits stemming from the VA scandal would be filed under the Federal Tort Claims Act, which allows people to sue for injury or death caused by the federal government. Proving tort claims are notoriously tricky, and Abrams says veterans who believe they were affected by substandard VA care or delays should go to their local bar association and get a list of lawyers who specialize in tort law. These cases will be complex and have statutes of limitations, he said, meaning filing in a timely manner is important.
“This is not the usual VA claim,” he said.