Taking on the VA – A $1 Million settlement against all odds
You can’t normally sue Uncle Sam and win. Everybody knows that. And you can’t normally sue the Veteran’s Administration (“VA”) and expect to win either, that’s’ pretty much common sense. In addition, there are laws that prevent active duty members of the armed service from suing the federal government. That leaves only retired veterans and the family members of active duty or retired veterans as the only ones with claims that might possibly succeed against the VA.
If you do have a legitimate case against the government it would need to qualify under the Federal Tort Claims Act (“FTCA”) which among other things requires a Standard Form 95 to be filled out and submitted to get the claim started. In an FTCA case – you do not get a jury – a federal judge decides your case – and there are compensatory damages for lost wages, medical bills and pain and suffering, but not punitive damages – no matter how bad was the medical treatment at issue.
Is it rare and unusual then to get a $ 1 million dollar settlement from the VA in a medical malpractice wrongful death suit? Rare yes, but not entirely impossible.
Kimberly Green’s husband Ricky – a veteran of the Iraq and Afghanistan wars — was only 43 years old when he died prematurely of a prescription pain and sleeping medicine overdose – due to these drugs being mistakenly prescribed by a VA medical doctor and mistakenly filled at a VA pharmacy after a back surgery.
While the facts of the negligence in the case are compelling, holding the VA accountable is entirely another matter, one that requires skill and persistence, fortitude and resolve. Fortunately, Kimberly Green and Attorney Jon Powell have plenty of these traits, as all would be called upon to prevail.
The medical case evidence clearly showed the trail of negligence on the part of VA doctors and VA pharmacists, but that would only add to the frustration of anyone taking on Big Government, and for a time, this case was no exception.
The cause of wrongful death as “confirmed unanimously by the Associate, Deputy Chief and Chief Medical Examiners of the Arkansas State Crime Laboratory in their Medical Examiner Report was mixed drug intoxication following recent lumbar spine surgery, primarily due to the Oxycodone and Diazepam dispensed by the VA, with the contributory factor of sleep apnea,” according to court documents.
Kimberly Green – the widow of Ricky Green –- testified before United States House of Representatives’ Subcommittee on Health, House Committee on Veterans’ Affairs, at a hearing entitled “Between Peril and Promise: Facing the Dangers of the VA’s Skyrocketing Use of Prescription Painkillers to Treat Veterans.”
In addition, her story also appeared nationally on the CBS Evening News.
Despite the publicity her case received – the VA would not settle the case. That was until the deposition was taken of the VA medical doctor who prescribed the Oxycodone and Diazepam. This doctor admitted that he was on the phone and otherwise occupied when he was asked to fill out prescriptions for Ricky Green post-back surgery. He scribbled out unreadable and defective prescriptions. The VA pharmacy – rather than call him to ask him to translate his prescriptions – filled then at TWICE the dose intended by the VA doctor. This doubled dose caused the wrongful death. Ricky Green went to sleep. He had an apneic event. He stopped breathing. The drugs suppressed his body’s normal reaction to start back up breathing after an apneic event. His body turned purple due to lack of oxygen and he died.
Attorney Jon Powell presented the federal court and the Assistant United States Attorney with all of the medical records and expert testimony to establish the negligence on the part of the VA doctor and the VA pharmacy and to establish that this negligence caused the premature and wrongful death of Ricky Green.
Attorney Jon Powell carried out lengthy and difficult negotiations with the VA and ultimately settled the case for one penny less than $1 million – the highest settlement authority possible for the United States Assistant Attorney on the case.