Good FTCA case, right? Not necessarily.
A veteran needs surgery because of gangrene in the toes of his right foot. Early surgical treatment is critical because this gentleman had already had a below the knee amputation of his left leg. Being a double amputee is a lot worse.
The VA doctors knew the patient needed surgery. They were quite clear with him and his family. Nonetheless, six days passed before the needed operation was done. By then, the infection had spread. The veteran ended up with an above the knee amputation of his right leg. He was left with only about a 4” stump.
Why did this happen?
The sterilizing equipment at the Indianapolis VA hospital was broken. The client who called us said it was down for 9 days. When I looked at news reports, it was likely longer than that. Apparently, the VA was shipping instruments to distant facilities to be sterilized. It then needed to be shipped back.
The hospital’s surgical service almost ground to a halt.
Delays in surgeries can harm patients. The person who contacted us certainly suffered. If others died, that would not surprise me.
Basically, the system broke down.
This story might be shocking, but it is not surprising. We have heard such tales before – many times, in fact.
I am certainly not an expert on hospital equipment needs and staffing, but common sense tells you that there needs to be some redundancy and/or some means of maintaining normal operations in the event of equipment breakdowns. Failure to do so seems quite problematic on the part of VA management.
If this sounds like a slam dunk malpractice case, your assessment would be misplaced. In a Federal Tort Claims Act case we can attack the direct negligence of medical providers. Attacking the managerial malfeasance of the VA is another matter entirely. “Discretionary functions” are generally excluded from the FTCA.
Not to get too much into the legal weeds, but the FTCA is a limited waiver of “sovereign immunity.” Absent some statutory permission – a “waiver”- generally the government – the “sovereign” – can’t be sued. The FTCA, like many such waivers of immunity at either the federal or state levels, is not an unlimited allowance to sue the government just as you would sue a private individual or corporation. Congress limited the scope of allowable claims. One such limitation is the exclusion of so-called discretionary functions, essentially management decisions.
So, this case where a veteran lost his leg will be a tough one for us.
We’ll take it on anyway. We’re creative and we have a few tricks up our sleeves.
We also want to help this veteran. He needs it, a lot
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