Federal Tort Claims Act (1946) 28 U.S.C. 1346(b), 2671-2680 Waives sovereign immunity of the U.S. for the negligent or wrongful acts or omissions of employees of Federal agencies acting within the scope of their employment
Amendments 1966 - Mandatory Administrative Claim Process Agencies given $25,000 in settlement authority (U.S. Attorneys had $20,000) 1988 – Increased delegation authorized for VA ($100,000) 1990 – Increased delegation for other agencies authorized by Congress and increased by DOJ 1993 – VAs, DODs & USPS delegation increased to $200,000 2008 – VAs, DODs & USPS delegation upped to $300,000
VA Tort Claims Organization 22 Regional Counsels Investigate original claims Settlement authority up to $150,000 Denial authority for any tort claim Support US Attorney in Litigation Coordinate with 021 on admin settlements >$150K, Reconsiderations, and Litigation
Tort Claims Section, PSG I Deputy Assistant GC – Kathryn Simpson 7 Staff Attorneys – Mary Bell, Sheldon Bolasny, Carl Boyer, Bob Broyles, Tim McKinney, Susan Ptacek, & Joan Weber Paralegal – Loretta Shilling 2 Support Staff - Deborah Lane Williams, Alecia Giles
Tort Claims Section, PSG I Settlement authority to $300,000 Reconsideration of Claims Denied by RCs Advising DOJ on VAs position as to settlements and appeals Coordinating w/RC on all of above
VA Medical Malpractice Fiscal Years 1999-2008 Amounts Paid
VA Malpractice Experience - FY 2008 1,377 new claims filed $78M paid Government prevailed in 92 percent of cases tried (SJ or beyond). Average VA administrative settlement:$ 100,000 Average litigation settlement:$ 285,000 Average judgment:$ 213,000 62 percent of suits closed and 20 percent of claims closed were with a payment. 86 percent of administrative claim closures were final (either settled, or denied without suit following).
Current (and recurrent) Issues Adverse Events – Patient Communication – Mass Disclosures Employee for FTCA Purposes Medical Records – CPRS Timeliness (and Quality) of Claim Decisions Timeliness of Medical Reviews Data Bank - Litigation
Mass Disclosures of Adverse Events Marion (Illinois) VAMC FYs 2006 and 2007 VHA Office of the Medical Inspector found –9 deaths attributable to Substandard Care –10 deaths affected by substandard care –24 with complications/prolonged recovery 30 tort claims; 12 settled 17 benefit claims; 14 granted
Employee for FTCA Purposes Employee of the government includes … officers or employees of any federal agency … Federal agency does not include any contractor with the United States 28 U.S.C. 2671
Medical Records EMR - What is a legal health record? HIM Brief #4 Guidelines for Defining a Legal Health Record
Timeliness of Claim Decisions Tort claim processing: In FY 2008,[the General Counsel] established a standard that we would investigate and resolve initial tort claims within 360 days with a view toward a goal of 180 days.* [*To be achieved by the end of FY 2010]
We started FY 2008 with an average age of 475 days for pending medical malpractice claims, and we ended the year with an average age of 380 days. March 2009 – 319 days Quality Concerns – U.S. Attorney Civil Chiefs Timeliness of Claim Decisions
National Practitioner Data Bank VA Procedures - 38 C.F.R. 46.3 (c) Payment will be considered to have been made for the benefit of a physician, dentist or other licensed health care practitioner only if ( at least a majority) of a malpractice payment review panel concludes that payment was related to substandard care, professional incompetence or professional misconduct on the part of the physician, dentist or other licensed health care practitioner.
Data Bank Litigation Sobel v. United States, 571 F.Supp.2d 1222 (D. Kan. July 31, 2008) The court, giving a reasonable inference to the allegations in the amended complaint, finds that the plaintiff has failed to sufficiently plead facts which would support a finding that the conduct of the review panel fell outside the scope of the discretionary function exception.
Veterans Post 9/11 Educational Assistance Act of 2008 (Post 9/11 GI Bill) Public Law 110-252 (June 30, 2008) Final Regulations, 74 Fed. Reg. 14654 (March 31, 2009) Correction – 74 Fed. Reg. 17907 (April 20, 2009) Effective August 1, 2009
Post 9/11 GI Bill Tuition & Fees: –Paid up front to the school at the beginning of each term –Capped at the tuition cost of the most expensive public school in the state –More expensive schools offering veterans-only scholarships will be matched dollar for dollar Books/Supplies: $1,000/year paid up front and divided by academic term Monthly Living: Based on DoDs BAH rate for E-5 with dependent - Uses zip code of the college/university
Tuition, Books, Living Stipend Based on Post 9/11 Active Duty Service 90 Consecutive Days:40% 6 Cumulative Months:50% 12 Cumulative Months:60% 18 Cumulative Months:70% 24 Cumulative Months:80% 30 Cumulative Months:90% 36 Cumulative Months:100% Time to Use Benefit:15 years Buy In:None