Some Positive Thoughts on a Personal Tragedy

October 14, 2011
By: Joe Callahan

We just reached a settlement with the United States in a particularly sad case.   The claim involved the death of a 67 year old veteran who was a patient of the VA health care system. The VA’s records showed that, after undergoing biopsy of a sore on his neck in 2004, more than four years passed before the veteran was informed that the tissue sample showed that he had advanced melanoma. 

The veteran filed his own administrative Federal Tort Claim.  VA officials eventually responded by explaining that the veteran had “received appropriate medical care for (his) melanoma”, but it offered a nominal settlement because of the “communications difficulties” associated with his case.  This was how the VA chose to characterize the four year delay in treating the patient for a life threatening and eventually incurable disease.

At this point, the veteran and his companion of some twenty years contacted our firm.  In our discussions, VA officials made clear their belief that, once the veteran died, his life companion would be unable to bring a successful wrongful death claim because the couple had never married.  As matters developed, the veteran and his devoted friend decided to marry, after which he survived three months before passing away due to his incurable cancer. 

Following the veteran’s death, we filed an administrative wrongful death claim against the VA on behalf of his (newly-married) widow and estate.   VA officials were clearly aware of their error in allowing their patient’s potentially deadly cancer to fall between the cracks.  Nonetheless, the agency refused to increase their minimal settlement offer. 

As soon as allowed by law, we filed suit on behalf of the widow and the veteran’s estate.   Unable to defend the care provided to the deceased veteran, the government nonetheless demanded a ruling that our client was barred from recovering damages for her personal loss.  They argued that applicable state law did not allow her to profit by “marrying the existing injury.”   John McChesney of our firm prepared a forceful and eloquent brief opposing that motion, and persuaded the Court that the law did not allow the government to escape liability.  The government’s motion was denied, and the path was opened for a prompt and fair settlement of the case.

This was a case where there was a clear error in the care provided to this gentleman.  The government did not contest that.  It never even tried to do so.  Yet, it fought this case for a long time, unfortunately adding to the hard times already being faced by a dying veteran and his widow.     Of course, these good folks wanted compensation for the loss, but they also wanted to send a message to the VA that continuity of care is important.  Veterans, those men and women who have served our country faithfully, deserve quality care.   In the end, the courage and persistence  of this couple was doubly rewarded; not only by reminding VA health care providers of the critical importance of providing reasonable care, but by helping to make new law protecting the rights of other survivors to appropriate compensation.

It was our honor to serve them.   It was a pity, however, that they ever had to get to the point of needing our services.