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Court grants new chance for military widow in VA lawsuit

The case of a military widow whose husband committed suicide after the U.S. Department of Veterans Affairs misdiagnosed his post-traumatic stress disorder is testing Tennessee's stringent medical malpractice laws and highlighting what a federal judge called the laws' "seemingly unfair" results.

The VA and the James H. Quillen Veterans Administration Medical Center in Mountain Home, Tenn., have conceded Greeneville veteran Scott Walter Eiswert was misdiagnosed and in 2008 committed suicide. The efforts of the National Guardsman's widow, Tracy Lynn Eiswert, to hold the VA and the Quillen doctors accountable have failed solely because of a few paperwork errors that ran afoul of Tennessee's medical malpractice laws.

U.S. District Judge Ronnie Greer tossed out Eiswert's case in 2013, which he called a "seemingly unfair result" of "procedural hurdles" the Tennessee Legislature created over the past few years to make it tougher for residents to sue medical professionals and facilities.

The 6th Circuit U.S. Court of Appeals came to the widow's rescue earlier this year, questioning whether those laws were indeed as unforgiving as they appeared. The appellate court asked the Tennessee Supreme Court to consider whether the laws required "strict compliance" with no room for error or "substantial compliance" with wiggle room for minor filing mistakes.

In a recently released opinion, the 6th Circuit revealed the state's high court refused to answer that question because of at least one other paperwork error Greer did not address in his ruling. Rather than declare defeat for the widow, the 6th Circuit is now sending the case back to Greer — with a twist.
The court is drawing a legal road map for Greer, citing specific cases he should consider that could favor the widow.

"On remand, we note several decisions which may inform the analysis of the unresolved issues," the opinion stated.

All of those cases were decided by Tennessee's Supreme Court after the widow's lawsuit was dismissed and have poked legal holes in the "strict compliance" requirements of the state's medical malpractice laws.

Greer has not yet set any new hearings in the case.

The facts surrounding Scott Eiswert's death are largely undisputed in court records.

Eiswert, 31, joined the National Guard in 2001. In 2003, he was called to active duty and sent to Iraq, where he served for two years before his honorable discharge in November 2005.

In those two years, Eiswert reported he and his fellow soldiers were under constant threat from roadside bombs and car bombs, that he was on the phone with a soldier friend at the moment that soldier was killed in an explosion and that he witnessed an explosion that killed 93 civilians, many of them children.

Eiswert began to suffer insomnia, agitation, anger and other symptoms of PTSD from the moment he returned home to his wife and children. He initially sought private counseling and was diagnosed with PTSD. When he lost his insurance, he turned to the VA and the Quillen facility for help and in May 2006 specifically filed for PTSD treatment.

According to court records, VA doctors never reviewed Eiswert's records from a prior private facility and labeled his PTSD as depression. For two years, the VA denied Eiswert care for PTSD and instead prescribed him various antidepressants, which the soldier complained were not helping.

In February 2008, Eiswert didn't show up for an appointment. A worker at the Quillen facility phoned him, but the line was busy. A month later, a clinician called Eiswert and drew a strange response.

"He states he was honorably discharged, does not wish to take any medications and respectfully states he did not know about the appointment today or he would have called," according to a note in the court file. "He does not wish any further appointments."

Less than two months later, Eiswert shot himself.
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(c)2016 the Knoxville News-Sentinel (Knoxville, Tenn.)
Visit the Knoxville News-Sentinel (Knoxville, Tenn.) at www.knoxnews.com
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