Common Claims | Defending Our Heroes

Since October 2009, Veterans Affairs has received nearly 45,000 allegations of mistreatment and wrongdoing in the military veteran medical care system. Unfortunately, these numbers represent just a fraction of veterans medical care errors committed in VA Hospitals.

Generally, about one in ten of all veterans medical care malpractice complaints are pursued in court. While some medical negligence is obvious, some is far more difficult to recognize.

In most situations, valid veterans claims of malpractice consist of two elements:

a mistake, which is a violation of the standard of care expected of military medical treatment providers
significant injuries because of the mistake, which are called “damages.” While it is a difficult reality, recovery for mistakes that don't result in significant injuries is often hard to pursue.

Standard of Care violations

The central question: Was the treatment received the treatment that should have been rendered?

To prove that the treatment provider was at fault, medical experts are often consulted. These experts are then required to testify that they would have done something different than what was performed by the military health care provider which resulted in injury.

Oftentimes, a mistake in treatment is difficult to identify as it requires the patient to know what physicians should have done. Without this information, symptoms of bad medical care can go unnoticed until additional surgery or corrective treatment is required.

Significant Injuries

Frequently, it's not enough to prove fault on behalf of military medical providers; a patient must also prove that they have suffered significant injury. Physicians may be negligent, but if their negligence causes no harm, a claim might not be warranted.

Significant injuries can take several forms:

loss of life
permanent injury or disfigurement
lost job or significant time missed due to the mistake
additional medical treatment and expense due to the mistake

A successful claim requires proving one of these injuries or one that rises to this level of severity. The court evaluates injuries when determining an award and the amount of the award typically reflects the damages suffered.

Hospital Errors

These errors often include failure to diagnose and misdiagnosis. Common examples are transcription errors on lab results, poor handling techniques, inadequate equipment and failure of staff to alert physicians or to report results in a timely manner.

Failures to diagnose cancer or to follow up relevant patient concerns with appropriate cancer diagnostic tests are also common claims. Prescription medication mistakes are also commonly claimed.

But, preventable errors might be less obvious. Bed sores, ulcers, preventable falls and instances where a patient receives treatment meant for another patient, are also issues that rise to the level of a civil action.

Surgical Error

Errors such as botched surgeries can be obvious, but some injuries from surgical errors don't become apparent until they manifest themselves.

Surgical errors can be the result of physician fatigue, miscommunication or recklessness and can often necessitate additional treatment or surgeries, which can leave the patient vulnerable to other serious risks.

Emergency Room Mistakes

Misdiagnosis and failure to diagnose are common emergency room errors. Diagnostic errors are a leading cause of malpractice in an emergency room.

Among the most common forms of emergency room mistakes are failure to diagnose heart attack, medication errors, failure to consult a specialist, failure to monitor patients and failure to order the proper lab tests or render the appropriate treatment or exams.

Medication Errors

It's estimated that medication errors cause about 7,000 deaths annually. In other cases they can cause injury and extend a patient's stay in the hospital. These claims are common in the military medical system where patient records are often mishandled by VA staff.

Failure to Diagnose & Misdiagnosis

Patients should be able to rely on their the expertise of VA physicians for timely and accurate diagnosis of health problems. Malpractice claims often arise when a staff fails to diagnose a problem that competent physicians are expected to detect.

Malpractice claims don't ask a court to second guess a doctor's decision; they ask the court to consider what a competent physician would have done under the same circumstances.

Failure to diagnose or misdiagnosis commonly result from transcription errors on lab results, poor handling techniques, inadequate equipment and failure of staff and physicians to report results in a timely manner.

Failure to diagnose cancer is a common claim at VA medical facilities. Physicians can fail to properly respond to patient complaints or perform necessary diagnostic tests such as mammograms, sonograms and biopsies. The consequences of these errors can be serious and irreparable.

Birth Injuries

Preventable injuries to babies that occur during labor and delivery are often significant, permanent and almost always amongst the hardest and most painful claims to pursue.

Multiple births, breech births and other complications during pregnancy and labor can increase risk of a child being born with brain injuries, which can lead to afflictions like cerebral palsy.

Other serious birth-related injuries including fractures, soft tissue damage and asphyxia or brain damage may occur when physicians use excessive force or fail to monitor a baby's condition during labor.

Birth injuries can profoundly alter a baby's quality of life and the lives of those entrusted with that baby's care.

Injuries to Extremities & Prosthesis

Prosthesis requires lifelong care and treatment. Injuries to the extremities demand consistent monitoring of circulation and neurological functions. Through this process of ongoing care, errors and inadequate treatment can occur.

Frequently, service members and veterans who undergo amputation suffer from “phantom limb” pain, which can require treatment in the form of medication. When the wrong medication is prescribed, a malpractice claim might be warranted.

Traumatic Brain Injury & Post Traumatic Stress Disorder

TBI and PTSD are the signature wounds of Operation Enduring Freedom and Operation Iraqi Freedom. Sufferers of PTSD and their families understand how debilitating it is and how it can prevent the return to a normal life.

In 2011, the Brain Injury Association of America updated its definition of TBI, defining it as “an alteration of brain function, or other evidence of brain pathology caused by an external force.”

While these two ailments are not caused by negligence, they often go undiagnosed and untreated. The lack of effective treatment can lead to other injuries and a claim for medical malpractice.