VA Docs Protected by Code of Silence

Washington, DCIn September 2016, bright and bubbly one-year-old ZaMari Reese suffered devastating brain damage during an operation to place tubes in his ears at Walter Reed National Military Medical Center. An ear tube operation, or tympanostomy, is a common procedure used to treat childhood ear infections and is generally thought to be very safe. ZaMari, now eight, cannot walk or talk and will require around-the-clock care for the rest of his life.

His parents filed a veterans medical malpractice lawsuit in 2019. After a 2022 trial, the family was awarded millions of dollars to provide for his care. In the process, however, they learned a disturbing lesson about how difficult the VA and the Defense Department make it for military families to seek redress for medical negligence – or to protect themselves and their families from it.
Perhaps, the moral of the story is not that the families of patients injured at VA hospitals should feel daunted, but that they should be prepared with patience and highly competent legal counsel.

Catastrophic missteps

ZaMari’s surgery took place two weeks after his first birthday. His parents allege that they were never told that his sickle cell and reactive airway conditions placed him at greater risk for complications or death. During the surgery there were clear indications that ZaMari was struggling to breathe and slipping into heart failure. His respiration and blood pressure indicated that he was in distress, setting off audible alarms four times.

Nearly 90 minutes after ZaMari was first given anesthesia, one of the anesthesiologists finally intervened, telling the surgeons, “You need to stop.” Just then ZaMari’s heart failed. Without oxygen, his brain began to die.

Cost of care

The cost of caring for a severely disabled child is not generally the first thing that parents think of when their child has suffered a life-altering medical mistake. But it eventually becomes an issue.

According to recent research, it may take as much as $960,000 to raise a child with special needs from birth to age 18. In only the three months after injury, the median individual-level costs may be as much as $7,265 for severe traumatic brain injury cases. Depending on the child’s needs, necessary specialized services may also include occupational, physical, and/or behavioral therapy or a private caregiver.

It adds up, especially for families of moderate means like those who serve in the military. There are a number of potential sources, including those that may result from a veterans medical malpractice lawsuit.

Who to sue?

The rule of thumb for a plaintiff’s lawyer in a medical malpractice lawsuit, is to cast as wide a net as possible. In a medical negligence lawsuit, that may include medical personnel, the hospital, and for veterans, the VA and the Department of Defense. ZaMari’s parents soon found out how difficult it was to target doctors.

Shrouded in secrecy

Investigators in Za’Mari’s case uncovered Defense Health Agency data that shows that since 2018, there have been at least 478 military medical providers reported by the Department of Defense to a confidential federal repository that contains information about disciplined doctors and medical malpractice judgments.

The names listed in the repository include both civilian and military medical providers and are only accessible to hospitals, state medical boards, and other entities making medical hiring decisions.

The data also shows that there have been:

• 160 suspensions of 30 days or more of military medical personnel between the middle of 2020 and 2022;
• Nearly 200 cases where military providers had action taken against their privileges to practice between 2018-2022; and
• More than 250 cases where peer review panels found military providers failed to meet the basic standard of care in that same five-year timeframe.

In the civilian world, the names of dangerous doctors are readily accessible from state medical boards or through state court records. Yet the names of providers at VA facilities remain hidden. Without names, there is no possibility for a recovery. Suing Dr. John or Jane Doe won’t pay those staggering bills.

What about suing the hospital?

The Federal Tort Claims Act allows people to take legal action against the federal government for negligence to its employees. In general, this would include suing a VA hospital for medical malpractice. However, the law leaves out “claims arising out of the combatant activities of the military … during time of war.” In its Feres v. US decision in 1950, the Supreme Court expanded the interpretation of the statute to include injuries that are “incident to service,” a broad description that has come to encompass nearly everything in military life.

As a result, it can be difficult for a military family to sue a VA hospital for medical malpractice. The Feres doctrine might not apply in the case of a service member’s toddler. In addition, Staff Sgt. Ryan Carter, the plaintiff in a different VA medical malpractice lawsuit filed a petition for certiorari with the U.S. Supreme Court challenging this rule on June 5. It is not yet clear whether the high court will decide to take the case. But public pressure clearly seems to be on the side of making it easier for military families to recover for medical negligence at VA facilities.