Veteran’s Day in Court

Question: What is your most difficult case?

The case involved medical malpractice at the Denver VA hospital. What we found during the six years of litigation, which is still ongoing, was an utter failure of the VA hospital, its physicians and its administration to acknowledge mistakes and to provide appropriate care and treatment to its patient after they injured him.

David, my client, was a veteran who was having an elective surgery. After the resident physician and attending physician started to anesthetize him, they couldn’t intubate him so they could breathe artificially for him. He ended up without oxygen for a significant period of time. Although his doctors thought he might never regain consciousness, he did. Unfortunately, he suffered profound brain damage. David is a big guy—6 feet tall, muscular and about 250 pounds. His emotional state at this point is probably that of a 3-year-old. He doesn’t really have any internal filter, and he has little memory. You can tell him the same thing over and over, and he doesn’t remember it. He wanders away from home and is difficult to control. He’ll never work again. He was a young man, 40 years old, when he was injured in 2003.

The case is memorable for many reasons. First, the VA hospital kept no records of what happened: no record of what drugs he was given, when they gave them or what his reaction was. There was literally a blank anesthesia record with his name at the top. After the fact, some of his doctors went back to try to re-create what drugs they thought they gave him, and when, but it was all guesswork.

Then they refused to acknowledge that David was the victim of substandard medical care. They claimed he had an adverse reaction to some drug he received, but they destroyed the syringes that carried the drugs and kept no record of what was given.

If you’re familiar with medical training, there are attending physicians and residents. Resident physicians have finished medical school but are still in training. At the VA hospital, the practice was to have an attending anesthesiologist present at the beginning and end of the anesthesia, but they would leave during the middle so they could cover two rooms at once. In this case, the attending anesthesiologist left David in the care of a resident who was in her third month of training. When David began to have problems, the attending anesthesiologist wasn’t even in the room. When the attending doctor returned, she was not given all the information she needed from the resident to provide appropriate care for David.

As we were fighting through the case, a federal judge dismissed the attending doctor as a defendant. As soon as she was dismissed, the VA placed 100 percent of the blame on her. Now the VA agreed there was negligence; but since the doctor who it claimed was negligent had been dismissed, there would be no compensation.

Again: This disaster occurred at the VA hospital. David was operated on in a VA operating suite, treated by VA residents, anesthesiologists and surgeons; VA equipment was used, and the surgery was staffed by VA nurses and technicians. But the attending anesthesiologist got her paycheck from the University of Colorado so the U.S. argued this made her a state employee who had governmental immunity under Colorado law, and the judge agreed.

The first judge passed away and a second judge was assigned to the case. He reviewed the facts and reversed the ruling dismissing the anesthesiologist. Now the U.S. was in the unenviable position of being legally liable for the actions of the very person its own experts blamed for David’s injury.

When the strength of our case and the quality of our experts became obvious, the defense team became desperate and they attacked us, David’s lawyers. The VA moved to have my firm disqualified from the case. It leveled unsubstantiated and untrue accusations against me personally and against other lawyers in the firm. All allegations were rejected by the court.

David’s case went to trial in two phases. The liability case was heard in November 2008, and the federal judge found the U.S. negligent and responsible to David for his injuries. But the U.S. government still refused to make any reasonable offer to settle the case. The damages case then went to trial in January 2009. By that time, over 400 pleadings had been filed. After hearing the evidence of David’s injuries and the substantial medical and attendant care he would require for the remainder of his life, the court entered judgment in excess of $10 million.

During this case I learned there is an astonishing lack of services available to veterans with a brain injury. The U.S. took the position that David’s family should be responsible for providing the 24-hour-a-day care he requires. The U.S. was uninterested in the burden David’s care places on his wife and four children. As an alternative, the U.S. argued David could be confined to a nursing home for the remainder of his life. This is simply not good enough. We will continue to fight for David until the U.S. is forced to accept financial responsibility for the great harm it has caused.

The United States still refuses to accept any responsibility for its injured veteran. It is appealing the verdict.