VA Hospital Settles Medical Malpractice Lawsuit for $880,000

Columbia, SC William Whittaker, an Army veteran, died on March 27, 2022 of lung cancer. He was 64. His widow filed a medical malpractice lawsuit in South Carolina’s federal district court. The lawsuit alleged that his death could have been prevented with timely diagnosis and treatment of a condition known to his doctor since 2020. The claim, essentially, is that he died of medical neglect. On April 5, the hospital agreed to settle  the lawsuit for $880,000. These are the bare bones of a terrible family story.

But two big questions remain:

• First:  Is medical malpractice pervasive throughout the sprawling VA hospital system; and
• Second: What can veterans and their families do to recover when the harm has been done?

Delayed diagnosis and treatment

According to the Complaint, a 2020 scan of Whittaker’s left lung showed a “complicated bulla,” or small blister. This often indicates lung cancer, according to the National Institutes of Health. Following the scan there was, allegedly, no further medical intervention by Dr. Alexis Lewis Stroman, Whittaker’s pulmonologist.

In November 2021, Whittaker had an outpatient visit with Stroman, who noted another scan of his lungs was due, but none occurred. Thereafter, Whittaker went to the medical center’s emergency room after he began having chest pain and trouble breathing. He was also coughing up blood. Doctors found a growth in his upper left lung and he was ultimately diagnosed with Stage 3 squamous cell carcinoma. Whittaker began chemotherapy, but died the following March.

Establishing causation is sometimes more a matter of art than science. Whittaker had been a heavy smoker, suffered from diabetes, chronic obstructive pulmonary disease and deep vein thrombosis. He used a wheelchair. The cause of the delay in diagnosis and treatment appears to have been disputed. Nonetheless, the Complaint raised troubling questions. The settlement spares both parties the trouble and expense of a trial and may have minimized the damage to the VA hospital’s reputation.

Veterans and lung cancer

Cancer is the second leading cause of death  in the U.S., and lung cancer is the deadliest. Compared to civilians, prior military service members have more than double the risk of developing the disease. Annually, about 7,700 vets are diagnosed with lung cancer in the VA health care system. Moreover, the five-year cancer survival rate among veterans is considered “extremely poor” at 20 percent. Those who served in the military (even nonsmokers) have a significantly higher risk of service-connected lung cancers likely due to chemical exposures. Asbestos, radon, Agent Orange, and other chemical solvents involved in military work are generally regarded as carcinogens.

Perhaps in recognition of this situation, the VA has recently announced a prospective study that will screen veterans who have been exposed to toxins, including burn pits. Individuals in the study group will be screened annually with low-dose chest CT to detect lung cancer and other disease early. Investigations like this may ultimately affect the medical protocols for diagnosing and treating lung cancers.

Many vets whose cancers have been diagnosed qualify for disability benefits. For those, like William Whittaker, who did not appear to have the benefit of proactive medicine, however, a medical malpractice or wrongful death lawsuit may be the only available remedy.

Is medical malpractice pervasive in VA hospitals?

In 2014, a scandal rocked the VA specifically concerning wait times at VA medical centers. Since then, the VA has taken steps to strengthen its medical infrastructure and staff and to provide better care for veterans. But the system is enormous.

The Veterans Health Administration is the largest integrated health care system in the United States, providing care at 1,321 health care facilities to over 9 million veterans enrolled in the VA health care program. Even if the problems are not pervasive, mistakes will happen.

Federal Tort Claims Act and wrongful death lawsuits

The FTCA allows veterans and their families to file medical malpractice claims against VA doctors and employees if their negligent care caused an injury. As a concept, medical malpractice may include both actions and the failure to act in situations that the local medical community would find unacceptable or unprofessional.

There are strict time limits for bringing an FTCA claim, however. The claim must be file within two years of the date the incident occurred, unless state law imposes an even shorter time limit. The first step is to file an administrative claim with the VA. The VA has a period of up to six months to respond.

Loved ones of family members who died because of medical errors may pursue a "wrongful death" claim on behalf of the victim's estate and beneficiaries. The potential recovery for "wrongful death" and other damages is governed by state law and varies from state to state.

Either remedy can be complicated, and this is a situation that will require the assistance of an attorney with specialized experience in veterans’ lawsuits.