Another Frustratingly “Fair” Settlement

Last week we settled a case that should have been resolved before suit was filed. The veteran presented to his VA primary care doctor and it was obvious he had serious heart trouble. A routine stress test was ordered for two weeks later. That test confirmed he had really serious and life threatening heart trouble. He was seen by a cardiologist who confirmed the diagnosis. On a Friday morning he was sent home and told to come back on Monday. You can guess what happened Sunday night.

 

This veteran’s death was quite preventable. He should have been admitted to the hospital and received the emergency treatment he needed. Had that happened, it is almost certain he would still be here with his family.

 

As we are required to do, we filed an administrative claim with the VA. The facts were laid out in detail. We provided our expert reports. The VA denied the claim. In its denial letter, the VA said there was no negligence with regard to the care provided. What nonsense.

 

We filed suit. The AUSA dotted his I’s and crossed his T’s, including extended depositions of the family members that went into great personal detail. We agreed to a mediation, but then we spent all day dealing with ridiculously low offers and it finally became apparent that the government lawyer plainly didn’t have the necessary authority to resolve the matter. The process then dragged on for almost another two months. Finally, with the help of an excellent mediator, we got the matter resolved for $285,000. The figure was fair, I suppose.

 

We couldn’t tell the client that if she proceeded to trial there was a reasonable chance of her netting more money. The litigation costs to try the matter were not going to be small.

My complaint is that this is a case the VA should have settled before we ever filed suit. The liability was about as clear as you get in this business. We were in a jurisdiction where the damages are capped, so that factor was knowable. The agency said no: It found no negligence in the care provided. Ridiculous.

 

Why does this matter? If an FTCA case is settled before filing suit the fee is 20% as opposed to 25% in litigation. If you have to file suit, the litigation costs go up hugely. Experts, depositions and travel are not cheap. If the case had been settled for the same amount before filing suit, the client’s net recovery (the amount after fees and costs) would easily have been $30,000 to $35,000 more. So it matters a lot that this client – and many like her – have been forced to litigate cases that should have been settled early on. We see this all the time.

 

The FTCA process is an adversarial one. The VA lawyers and Assistant United States Attorneys have an obligation to represent their client, the government, zealously. They also have an obligation to be fair and honest – to do their job as lawyers in a reasonable and professional way. Any reasonable lawyer looking at this case would have seen there was really no way to defend it. It needed to be settled. I can only conclude that the lawyers involved in evaluating this claim simply didn’t give it the evaluation it should have gotten. It was just pushed off of someone’s desk the easiest way possible: Denying it.

 

Many of the VA lawyers and AUSA’s we deal with are very decent and conscientious professionals. But what happened in this case was not an outlier. We see it frequently. It makes life hard for us, but who it really hurts is the family pursuing a claim. For them it is just wrong, very wrong, to be forced to incur these costs and jump through these hoops because government lawyers cannot or will not do their job.