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 CUE and RAMP

Host: “Dr. Bash, we’re here to talk about some CUE stuff.”

Dr. Bash: “Yeah, I was thinking about those things today. Let me throw a monkey wrench into it for a minute. Not long ago, I just reviewed a story in Smart News indicating they reviewed a study of veterans in VA nursing homes that found in 25 states, veterans were either suffering from injury or placed at immediate jeopardy. That distressed me so much that I wanted to bring it up if I may.”

Host: “Quality of care in nursing homes, is that the idea?”

Dr. Bash: “Yes, those were inspection reports from April through December of 2018 by a private contractor, and they found deficiencies in 52 out of 99 VA nursing homes.”

Host: “Oh my.”

Dr. Bash: “That caused actual harm to veterans, and in three facilities, they found veterans’ health and safety in immediate jeopardy. In eight, they found veteran harm and jeopardy. That’s the majority.”

Host: “You know, back in the day when I used to work at the PVA and I was doing those site visits, part of what I did was go to nursing homes. I uncovered a lot of similar stuff you’re talking about. I found that the ones attached to hospitals were better than the ones displaced from a hospital because they had more staff and supervision. Doctors were in there more and stuff like that. But I found some horrific problems too. I found 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. The problem is that those nursing homes back in the day weren’t accredited. The Joint Commission never used to go around and check on nursing homes, so those places could get kind of sideways.”

Host: “I know Sherman Howard was working on that. He’s in Georgia, and he said the one there in Atlanta was such a pitiful mess. He’s been complaining to everyone, and they just won’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 the elderly veterans in such a way.”

Dr. Bash: “Right, right. Bill, how that’s right. Surveys are good. Inspections are good.”

Host: “Who did the inspection? Was it a private company?”

Dr. Bash: “Yes, it was a contractor.”

Host: “Who paid for it?”

Dr. Bash: “Let me see if I can find that. In my experience, those inspections are really powerful. We could start a philanthropic organization to do inspections.”

Host: “True, true. I’m reading that now to see what I can find. While I’m scanning through here, I’d like to mention that I too was among the service officers assigned to monitor health care at a variety of VA hospitals. As I recall, one of the most frequent breakdowns was the failure to turn patients who are not able to move themselves, resulting in decubitus ulcers, or what’s called bed sores in common terminology. The breakdown I found most often was that when the patient is admitted, they’re supposed to have these skin care protocols written by VA attached to their chart bedside. At each interval when the patient is scheduled to be turned, the nurse or attendant is to initial the box and write down the time they actually turned the patient. What I observed was that those protocols were not always making it to the bedside. Now, I hope there’s some improvement because they’ve gone to electronics. You just look at the screen, and it should tell you to turn the patient every so many hours. That’s one aspect. I did note in this article that bed sores are one of the ailments that they found occurring too often. Here it is: inspectors found that staff at more than two dozen VA nursing homes failed to take steps to ensure bed sores healed or new ones didn’t develop. They can occur when frail people are left in the same position too long. In Cincinnati, one resident had five bed sores in six months, yet when inspectors visited, they found no one moved the man or put cushions under him for hours.”

Dr. Bash: “Are they marking that they did turn them and then didn’t actually turn them?”

Host: “The article didn’t say. This is in USA Today and the Boston Globe, collaborating. This article came to me on Smart News just four hours ago. For a time, when I was stationed at one VA hospital and tasked with trying to help, I was serving on a committee at the hospital. One of the things that became obvious was that for patients with severe debilitation like paralysis, they are vulnerable to respiratory and urinary infections. This article is citing those same two problems. When I was at this one particular hospital, the chief of neurology decided and mandated that these paralyzed patients, when they come in, instead of going to an infectious disease ward, which was what routinely goes on for a patient with an infection, they would be admitted to the neurology ward where they had better equipment, staff, greater spaces, and better immediate experience dealing with people who are vulnerable to these types of disabilities or problems. The rates improved at that hospital thereafter. I don’t know what’s going on there now.”

Dr. Bash: “My goodness.”

Host: “Yes, you could form a pressure sore in 20 minutes. What I found was that when the nurse staffing numbers were too low, the pressure sore numbers went up. That’s what was happening. The infectious disease ward had a higher caretaker-to-patient ratio in the neurology ward, so it worked out to be much better for the patients. I just needed to get that out there. If anyone wants to know if someone’s been harmed and they believe it’s due to negligence, fault, or lack of judgment, compensation by VA may be available for any additional disability caused by VA care. You’ll find that in Title 38, United States Code, Section 1151. Anybody with a pressure sore, those are totally preventable and totally known about. You could probably argue that a pressure sore is negligence.”

Dr. Bash: “I have to say, in my observation dealing with VA employees, physicians, and those serving in adjudication capacity to advise on adjudication claims, my recollection is that they were somewhat of the uniform opinion that the development of a pressure sore is a known risk and that’s going to happen in a certain number of cases. I just never personally bought into that. Never did.”

Host: “No, that’s dumbing down medicine. It’s been known for years you can prevent it, but people, you know, it’s a manpower issue. They’re just trying to minimize.”

Dr. Bash: “Yes, and those sores take so long to manage and heal. It’s a real problem. Once you get a scar, you’re at high risk for it to repeat.”

Host: “Yes, yes.”

Compensation for Additional Disability

Dr. Bash: “Should we run down the requirements for such a claim?”

Host: “What’s that, Bill?”

Dr. Bash: “Should we mention what’s required to prevail in a Section 1151 claim?”

Host: “Yeah, sure.”

Dr. Bash: “There’s been a long history. The original title was 351, then it got renumbered back in 1980. For many years, VA said there had to be a fault, negligence, or some other basis to compensate a veteran. Then a case came about, Brown, where we found that VA’s imposition of the fault requirement was in excess of what was required by the statute and set that aside. The VA had to compensate a great number of veterans for disabilities incurred as a result of VA treatment. The following year, after Congress paid the funds necessary to pay those claims, Congress enacted a new statute, Section 1151, and reimposed the fault requirement. That was a very expensive proposition.”

Host: “So, there is this finding. These are spelled out in 38 CFR 3.358 and 3.361. Guidance is also provided by VA General Counsel’s opinion 40-97. There are three basic criteria that must be met. The first prong is that you actually have an additional disability. It must exist. To determine that, you are required, as VA is required, to assess the physical condition immediately prior to the beginning of care and then after whatever relevant incident is claimed to be responsible for the additional disability. Once you satisfy the threshold requirement of actually having an additional disability, the next requirement is to show causation. This is different from service connection in this regard. You may recall from one of our earlier discussions that service connection for a disability relating it to military service may be shown either by causation or by coincidence. For example, if you develop hypertension while you’re on active duty, it’s service connected. You don’t have to show that something happened to you in the military to prove it was caused by the military because it was present during your military service. Unlike that, Section 1151 claims do not permit a finding of coincidence. There must be actual causation. The words require both actual and proximate causation. You can’t come in 10 years later and say, ‘I think this might have been caused by treatment I got 10 years ago.’ Don’t misinterpret that; there’s no statute of limitations. If you have a disability you think is related to VA care, you certainly may file a claim regardless of when that event occurred.”

Dr. Bash: “Once we establish that there is an additional disability and we’ve established actual proximate causation, we have to establish if it is a result of carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault that approximately caused the additional disability. So, Bill, those don’t have to have all those elements; it could be any one of those, right?”

Host: “That’s correct. Any one of those I’ve discussed so far are independent bases for finding that you’ve satisfied what we generically refer to as the fault requirement. Now, let’s say VA didn’t do anything wrong and they did exercise and provide good care. Nonetheless, if the care or treatment furnished was done without informed consent, that might provide a basis for compensation. If you go in and the doctor says, ‘Okay, I’m going to have this surgery, and it has a risk of infection and a risk of bleeding,’ and you consent, but after the surgery, you are paralyzed with paraplegia, and they didn’t mention paraplegia in the informed consent, that might provide the predicate to allow compensation. The last criterion is an event not reasonably foreseeable based on what a reasonable healthcare provider would have foreseen. Not completely unforeseeable or unimaginable, but one that a reasonable medical provider would not have considered to be an ordinary risk of the treatment provided. So those are some of the parameters.”

Examples of Unexpected Outcomes

Dr. Bash: “Do you remember that angiogram case? Do you have an example we can talk about for that unforeseen outcome?”

Host: “Actually, I was thinking of surgery that we did review. I’m not sure if you and I worked on that same case at the same time, but I do recall a veteran had repeated surgeries to the cervical spine and wound up as a quadriplegic as a result of the surgeries. In that case, there was ample medical evidence to demonstrate, yes, it was a result of the procedure, a result of VA care. There was an additional disability, but there was no fault, negligence, or substandard care involved. They did a good job, but the outcome was unfavorable. We prevailed in that case because once all the records had been reviewed, it was determined that the veteran had suffered what’s known as a tethered cord, where the calcification process from the degenerative joint disease had, in effect, tethered the cord to the vertebrae. It was somewhat immobilized during the procedure. It was necessary to expand the space between the vertebrae to insert bridging material to fuse the two vertebrae. When they expanded the space, they stretched all the tissue around it, but what they had not foreseen was that the cord had been tethered. When they did that, it stretched the cord, compromised the circulation, and the cord began to degenerate, resulting in quadriplegia. That’s an example of an unforeseen complication.”

Dr. Bash: “That’s the unexpected outcome. It’s not what you expect to have happen, right? A reasonable healthcare provider would not have anticipated it.”

Host: “Generally speaking, you’re going to find those predictable complications or consequences on the informed consent that the patient signs prior to the procedure. If it’s not included in the written authorization, in some cases, the court has permitted VA to present evidence showing that the physician had discussed it with the patient, and that was documented in treatment records. That’s another way VA can say, ‘Yes, we warned you about this.'”

Dr. Bash: “Usually, the way I interpret that is understanding informed consent that they might say there’s a 5% risk of XYZ, but that means the expected outcome is that there won’t be any XYZ. Even if XYZ happens and it’s on informed consent, I still write it up as, ‘I understand, but that’s not exactly spelled out in the guidance available to us.’ I push it that way with my medical opinions because I think it’s important.”

Host: “The way to figure these things out is to get them adjudicated. You first file your claim at a regional office with appropriate documentation, then get a decision from the regional office. If that doesn’t go favorably, you appeal to the Board of Veterans’ Appeals, ultimately perhaps to the court if there’s an interesting question of law they would be interested in reviewing and interpreting.”

Conclusion

Host: “Thank you all for listening. That ends this show. Now I’m going to zoom off.”