Veterans’ malpractice claims on the rise
By CRAIG SCHNEIDER | The Atlanta (Ga.) Journal-Constitution | Published: November 13, 2013
ATLANTA — As thousands of soldiers returned home from overseas in recent years, American taxpayers have paid more not just for veterans’ medical care but for a surge in malpractice claims against veterans hospitals.
Settlements and court judgments have cost taxpayers $845 million since 2003 and reached a high of $98 million last year, according to an exclusive analysis by The Atlanta Journal-Constitution and Cox Media Group, the parent company of the AJC and Atlanta’s Channel 2 Action News.
Some members of Congress and government watchdogs say the U.S. Department of Veterans Affairs isn’t doing enough to prevent medical errors. They say the agency’s culture lacks accountability and incentives to improve.
“That’s unacceptable,” said Rep. Phil Gingrey, R-Ga., a licensed physician. “It’s we the taxpayers that are actually paying out the claims. And where’s the accountability?” Critics decry the VA practice of awarding bonuses to some doctors and administrators even if they have been implicated in medical mistakes. In Atlanta, a former head of the VA hospital received $65,000 in bonuses over a four-year span, a time when mismanagement of the hospital was linked to the deaths of three mental health patients.
Many cases examined by Cox Media Group reporters are heart-wrenching: a 20-year Marine Corps veteran paralyzed after a routine tooth extraction; an Air Force veteran who died after a surgeon accidentally punctured his heart; an Army veteran who died after doctors repeatedly failed to diagnose signs of lung cancer.
Still, the VA may be doing no worse than the private sector, said Dr. Anupam Jena, a physician at Massachusetts General Hospital and an assistant professor at Harvard University.
Jena noted that the VA ends up paying plaintiffs in about 25 percent of cases. Private-sector health systems pay in about 20 percent, according to a study he participated in that surveyed 40,000 doctors. It was published in The New England Journal of Medicine.
“Are VA doctors worse than other doctors?” Jena said. “No.” The AJC analyzed payments to 4,426 veterans and family members from 2003 to 2012. Over that period, the number of patients treated each year by the VA increased. So did the number of malpractice payouts and the dollar amount. Each of the numbers fluctuated from year to year but trended upward.
Comparing the first half of the 10-year period to the second half, the average number of VA patients grew by 10 percent, the average number of annual payouts increased 12 percent, and the average cost to taxpayers rose 14 percent.
“More and more patients are being seen, and that presents more opportunities for medical malpractice,” said Jerry Manar, deputy director of national veterans service for the Veterans of Foreign Wars.
For the vets and family members who file these lawsuits, the costs are devastating beyond dollars. Veterans who survived battle find themselves fighting against the federal agency intended to help them. Spouses who celebrated their loved ones’ return from war find themselves standing before flag-draped coffins.
Bill Boritz, a Decatur resident who flew B-52s during the Vietnam War, trusted his doctors at the Atlanta VA Medical Center.
In April 2010, doctors using laser surgery to fix a flutter in his heart accidentally burned a hole in it, said his wife, Veronica Boritz.
“I went to see him in the ICU,” she said. “He was screaming in pain.” Veronica Boritz, who is 63, believes the doctors sent her husband home too quickly. His recovery went poorly, leading to numerous trips back to the hospital. She believes he was placed on the wrong medications. A month after the operation, on his last visit to the emergency room, she sat with him hours before doctors attended to him.
His organs were failing and his heart was bleeding. He needed emergency surgery. As she waited, she heard alarms go off and saw medical personal rushing in. He died as they were starting the surgery.
Nearly three years passed before the VA settled with her for $300,000.
“Something should change; someone should be held accountable,” she said.
VA officials say they have a relatively low rate of malpractice claims, considering that, with 151 hospitals, theirs is among the nation’s largest medical systems. VA studies show the system outperforms other top health systems on patient mortality and safety.
“VA takes patient safety very seriously and Veterans Health Administration personnel remain committed to maintaining a high level of care, transparency and accountability,” the VA said in a statement.
Numerous procedures are in place to catch errors and learn from them, VA officials said. Internal and external reviews monitor patient safety.
But critics say the VA has no incentive to hold malpractice costs down. The VA doesn’t directly pay for damages; the money comes out of the Treasury budget.
“The VA likes to say they’re accountable, but I don’t believe the word even exists in the VA dictionary,” said House Veterans Affairs Committee Chairman Jeff Miller, a Florida Republican.
In addition, plaintiffs cannot directly sue a VA doctor. They must sue the agency, and that provides cover for the doctors, critics say.
“There’s a culture of complacency that’s going on,” said Rep. David Scott, D-Ga. “But you know what breaks my heart? We focus so much on sending our soldiers to war. But when they’re coming back, we don’t have the same focus on taking care of them.” A recent report by the nonpartisan Government Accountability Office found that in 2011 the VA gave $160 million in bonuses to medical providers without adequately linking the extra pay to the quality of their work.
Last year was a particularly costly one in terms of malpractice payouts, due in large part to a single $17.5 million court judgment. The award, the largest in 10 years, went to a Philadelphia Marine Corps veteran left permanently paralyzed by a routine tooth extraction.
Some experts see bigger bills ahead.
Wounded soldiers are coming home with severe injuries that would have killed their counterparts in earlier wars. They will need extensive and often complicated care.
Ohio attorney Stephen O’Keefe, who specializes in VA malpractice claims, said younger vets also tend to receive higher malpractice awards because they have more life ahead of them.
Veronica Boritz said it’s been hard moving on since the death of her husband. They were married 40 years. She often finds herself turning the pages of family photo albums. She hardly feels she received justice. The doctor who she said made the fatal mistake was never held liable.
The folded flag she received at her husband’s funeral is framed and sits atop a cabinet in the living room.
“He wasn’t just somebody I knew who died. He was my whole life,” she said.