Introduction
We’re here today to try and inform as many veterans as we can. We’re here with Dr. Bash. Welcome, Radio Land, TV Land, and YouTube viewers and listeners. This is Dr. Craig Bash. I’ve been doing Veterans Medical Opinions for 30 years, and I have dozens and dozens of these radio shows, which we’re going to publish on this YouTube channel, numbered one to whatever. So thank you for listening, and here we go.
Discussion on Secondary Injuries and CU
Dr. Bash: D was going to say something about secondary injuries, Bill, or were we going to talk about some CU stuff?
Bill: Both, yeah. I was thinking about those things today. Let me throw a monkey wrench into it though for a minute. Not long ago today, I just reviewed a story in Smart News indicating that they reviewed a study of veterans in VA nursing homes that found in 25 states, veterans were either suffering with injury or placed at immediate jeopardy. That distressed me so much that I wanted to bring it up if I may.
Quality of Care in VA Nursing Homes
Dr. Bash: Quality of care in nursing homes, Bill? Is that the idea?
Bill: Yes, those were inspection reports from April through December of 2018 by a private contractor. They found deficiencies in 52 out of 99 VA nursing homes that caused actual harm to veterans. In three facilities, they found veterans’ health and safety in immediate jeopardy, and in eight they found veteran harm and jeopardy. That’s the majority.
Dr. Bash: You know, back in the day when I used to do site visits, part of what I did was going to nursing homes. I uncovered a lot of similar issues. I found that the ones attached to hospitals were better than the ones displaced from a hospital because they had more staff, more supervision, and doctors were in there more often. But I found some horrific problems too. There have been a lot of veterans in civilian nursing homes that were also not perfect. I’m glad they’re doing this survey. Supervision is really important to look for standards.
Sherman Howard: Sherman Howard was working on that in Georgia. He said the one there in Atlanta, Georgia, was such a pitiful mess, and he’d been complaining to everyone, but they just wouldn’t pay attention to him. I don’t know what it’s going to take to get these nursing homes squared away. It’s just not right that they treat elderly veterans in such a way.
Inspection Findings
Bill: Yes, that’s exactly right. Surveys and inspections are good. The article didn’t specify who paid for it, but it mentioned a private contractor. In my experience, those inspections are really powerful. We could start a philanthropic organization to do inspections, veterans helping veterans.
I’m reading the article now to see what I can find. One of the most frequent breakdowns was the failure to turn patients who are not able to move themselves, resulting in bed sores or decubitus ulcers. When I was stationed at one VA hospital and serving on a committee, I found that these protocols were not always followed. The electronic system should help with this, but I noted in the article that bed sores were still a common issue.
Personal Observations
Bill: When the staffing numbers were too low, the number of pressure sores went up. In one instance, the chief of neurology decided that paralyzed patients should be admitted to the neurology ward rather than an infectious disease ward. This change improved the care at that hospital.
Dr. Bash: That’s huge because a pressure sore can form in 20 minutes. What I found was that nurse staffing numbers were crucial. If the nurse-to-patient ratio was too low, the number of pressure sores increased.
Bill: Yes, that was happening in the infectious disease ward. They had a higher caretaker-to-patient ratio in the neurology ward, which worked out better for the patients.
Title 38 United States Code Section 1151
Bill: If anyone believes they have suffered harm due to negligence or lack of judgment, compensation by the VA may be available for any additional disability caused by VA care. This is found in Title 38 United States Code Section 1151. Pressure sores are preventable, and you could argue negligence if they occur.
Dr. Bash: Yes, pressure sores are known risks, but they are preventable with proper care. It’s a manpower issue, and it takes a long time to manage and heal these sores. Once you get a scar, you’re at higher risk for repeats.
Requirements for Claims under Section 1151
Bill: Would it benefit to run down the requirements for such a claim?
Dr. Bash: Yes, go ahead, Bill.
Bill: For many years, VA said there had to be fault or negligence to compensate a veteran. Then a case came about, and the courts found that VA’s imposition of the fault requirement was in excess of what the statute provided. Congress then reimposed the fault requirement in 1980.
To prevail under Section 1151, certain criteria must be met:
- Additional Disability: There must be an actual additional disability.
- Causation: The additional disability must be a result of VA care.
- Fault: The disability must be due to carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault.
There is also the concept of an unforeseen event. If the care was provided without informed consent, or if the event was not reasonably foreseeable by a healthcare provider, it might provide a basis for compensation.
Examples of Claims
Dr. Bash: Do you have an example we can talk about for an unforeseen outcome?
Bill: Yes, I recall a veteran had repeated surgeries to the cervical spine and ended up as a quadriplegic. There was no fault or negligence, but the outcome was unfavorable due to an unforeseen complication known as a tethered cord. When they expanded the space between the vertebrae, it stretched the cord, leading to quadriplegia. This was an example of an unforeseen complication.
Dr. Bash: That’s an unexpected outcome. It’s not what you expect to happen.
Bill: Exactly, it’s about what a reasonable healthcare provider would have anticipated. The courts have permitted VA to present evidence showing that the physician discussed risks with the patient and that it was documented in treatment records.
Informed Consent and Reasonable Foreseeability
Bill: The informed consent process involves detailing the risks. If the expected outcome is that there won’t be any XYZ complications, but they occur, it can be argued as an unforeseen event. It’s important to get these things adjudicated to understand the rules better.
Dr. Bash: Yes, pushing for the expected outcomes in medical opinions is crucial.
Adjudication Process
Bill: To figure these things out, you file your claim at a regional office with appropriate documentation. If that doesn’t go favorably, you appeal to the Board of Veterans Appeals, and ultimately, perhaps to the court if there’s an interesting question of law they would be interested in reviewing and interpreting.
Thank you all for listening. That ends this show, and now I’m going to zoom off.