Veterans Court of Appeals Discusses VA Hospital Negligence Standard

Veterans who receive treatment at VA hospitals and suffer from additional disabilities may be entitled to compensation for additional disabilities that result from that care, if the proximate cause of the disability was an event not reasonably foreseeable.

This phrase — which addresses the VA hospital negligence standard — has long caused confusion amongst veterans and their advocates, but the U.S. Court of Appeals for Veterans Claims has now issued a decision that attempts to provide some clarity.

Schertz v. Shinseki

In Schertz v. Shinseki, No. 11-2694, the veteran underwent an aortic bifemoral bypass graft surgery. An uncommon but possible risk of this surgery is paralysis. The veteran suffered paralysis as a result of the surgery. He filed a claim for VA benefits for the paralysis, arguing that he should be compensated because it was the result of an event not reasonably foreseeable.

The question in this case was the standard that needed to be applied when evaluating whether the event that caused the additional disability was not reasonably foreseeable. Did it matter whether the doctor actually knew that the additional disability could result when he sought informed consent? Or was it what he should have known? Did it matter whether the patient actually knew the additional disability was a possibility when he consented to the surgery?

The Court determined that what the doctor actually knew was not relevant. Rather, the standard in these cases is to look at how a reasonable doctor would have behaved if asked to perform the procedure on a veteran with the same characteristics in a given case. In other words, veterans and their advocates should look at what a reasonable doctor would have done–would he have known that the additional disability was a possibility, and informed the veteran of the risk?

Experienced Advocates for the U.S. Court of Appeals for Veterans Claims

For many issues involving veterans’ treatment and benefits, a veteran can ultimately appeal to the Veterans Court if he or she has not received full compensation. If you need representation look no further: we have advocates who are members of the Court of Appeals for Veterans Claims Bar Association who will use their experience to fight for your rights. There is no cost to you. Any advocate fees and costs that arise will be paid by the government if you win and we will not charge you anything if we are not successful.

Contact us today for help with your appeal.

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