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Upturn in Number of VA Medical Malpractice Claims in Georgia

As a Georgia personal injury attorney who has handled many VA medical malpractice claims, I have seen a rise in the number of potential claims against the VA as the amount of resources devoted to veterans has not kept up with the amount of medical care needed by our veterans. The sample pleading below is a form complaint to sue the VA for medical malpractice in Georgia, but prior to initiating such action there are a number of unique procedurals hurdles that must be complied with, such as filing a timely administrative claim under the FTCA for damages with the Veterans Administration prior to filing suit or your right to sue may be lost forever:

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA — ATLANTA DIVISION

COMPLAINT FOR MEDICAL NEGLIGENCE AND WRONGFUL DEATH

Plaintiff, for her complaint, avers through counsel as follows:

1. Plaintiff brings this civil action against the United States for medical negligence and wrongful death. Plaintiff alleges an entitlement under federal law to money damages for medical malpractice committed by federal employees at a facility owned and operated by the United States.

2. This complaint is brought pursuant to the provisions of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §1346(b), and 28 U.S.C. §1331. These statutes vest the court with jurisdiction over this action.

3. Plaintiff is a resident of the State of Georgia.

4. Plaintiff is the personal representative of the estate of the deceased Plaintiff and is the surviving spouse of Plaintiff.  At all relevant times, Plaintiff, the decedent, was a citizen and resident of the State of Georgia.  The plaintiff is further authorized to bring this action under the laws of the State of Georgia.

5. At all times material hereto, defendant United States of America owned, operated, and managed the Department of Veterans Affairs Medical Center (“VA Hospital”) as a hospital within the Veterans Administration open to Veterans, and located in Decatur, Georgia.

6. At all times material hereto, the VA Hospital held itself out to be qualified to care for the decedent, to provide him with needed medical services, and to be able to exercise reasonable care while the patient was under the care of the facility and its personnel.

7. The plaintiff, individually and as personal representative of the estate of Plaintiff, filed a timely administrative claim under the FTCA for damages with the Veterans Administration. (Exhibit 1).  That claim has not been acted upon and more than six months have elapsed since the date it was filed.  Plaintiff has duly exhausted her administrative remedies.

8. Process may be served, pursuant to Rule 4 (8) (2), F.R.C.P., by a) delivering a copy of the complaint and summons to the U.S. Attorney for the Northern District of Georgia, whose address is Richard B. Russell Building, 75 Spring Street, S.W., Room 1800, Atlanta, Georgia 30335; b) by delivering the summons and complaint by registered or certified mail to the Attorney General for the United States, whose address is The Honorable Janet Reno, Department of Justice, Room 4400, Main Justice Building, 10th and Constitution Avenue NW, Washington, D.C., 20530; and c) by sending a copy of the summons and complaint by registered or certified mail to The Honorable Togo D. West, Jr., Secretary of Veterans Affairs, 810 Vermont Avenue, Washington, DC 20420.

9. Venue is proper in this district under 28 U.S.C. § 1402(b).

10. Plaintiff was a 53-year-old male with a past medical history of coronary artery disease, insulin dependent diabetes mellitus, peripheral vascular disease, chronic renal insufficiency with a base line creatinine of 2, gastroesophageal reflux disease, heart murmurs and depression.

11. Plaintiff underwent coronary artery bypass grafting on December 12, 2016 at Emory University Hospital.

12. Plaintiff was discharged home, but returned approximately one week later to the Emergency Room at Emory University Hospital with purulent drainage from the chest tube site.

13. On December 29, 2016, Plaintiff was admitted to the Intensive Care Unit at Emory University Hospital, and was noted to have exposed sternal wires and purulent drainage from the lower chest incision.  Blood cultures were obtained and showed Staphylococcus Aureus.

14. On December 29, 2016, Plaintiff was taken to the operating room at Emory University Hospital for sternal debridement, and his wound was left open for approximately four days.

15. On December 31, 2016, Plaintiff was returned to the Operating Room at Emory University Hospital and underwent pectoralis flap closure of the sternum and I&D of the right groin.

16. On postoperative day No. 1, Plaintiff was noted to be much less responsive and had no movement on the right side.  A CT scan showed a left middle cerebral artery infarction.

17. Carotid duplex was performed showing grossly normal carotid arteries  bilaterally. Plaintiff remained intubated and ventilated for ventilation support and airway protection.

18. On January 6, 2017, a tracheosteomy was performed at Emory University Hospital, and Plaintiffs’ right leg was noticed to be moving spontaneously.  However, his right arm was still not responsive.

19. On January 8, 2017, Plaintiff underwent PEG tube placement for feeding.

20. On January 9, 2017, Plaintiff was transferred from Emory University Hospital to the Department of Veterans Affairs Medical Center (“VA Hospital”) for rehabilitation.

21. Upon transfer to the VA Hospital, Plaintiff was admitted to the Surgical Intensive Care Unit.

22. While in the Surgical Intensive Care Unit, Plaintiff required frequent suctioning of his tracheostomy tube due to his inability to expectorate thick secretions.

23. Suctioning of the tracheostomy tube was performed  every two to four hours in the Surgical Intensive Care Unit.

24. While  in  the  Surgical  Intensive Care Unit, Plaintiff was continuously monitored by pulse oximetry.

25. On January 12, 2017, at approximately 5:15 p.m., Plaintiff was transferred from the Surgical Intensive Care Unit to a post surgical suite on the 8th floor of the VA Hospital.  Plaintiff’s transfer was facilitated by his attending physician,  and  by   his assistant, P.A.

26. While in the post surgical suite, Plaintiff was not continuously monitored with pulse oximetry.

27. Additionally, the records do not indicate any suctioning of Plaintiff’s tracheostomy tube while he was in the post surgical suite.

28. On January 13, 2017 at approximately 1:20 a.m., Plaintiff was found in bed gasping for air.  Attempts to arouse Plaintiff  were unsuccessful.  The nurse suctioned Plaintiff’s tracheostomy tube and found a large amount of thick yellow secretions blocking Plaintiff’s airway.

29. Plaintiff went into cardiopulmonary arrest which resulted in cerebral anoxia.

30. Plaintiff was given a poor prognosis for a meaningful recovery.  Therefore, Plaintiff’s family chose to discontinue recuscitative measures.

31.Plaintiff was again transferred back to the floor on a ventilator with intravenous fluids for hydration and on January 23, 2017, Plaintiff was found without vital signs and pronounced dead at 11:15 a.m. 

32. At all times material to this complaint, VA Hospital personnel were acting as employees, apparent employees, agents, or servants of the defendant, and were acting within the scope of their employment, apparent employment, agency, or master-servant relationship.

33. VA Hospital and its personnel owed the decedent a duty of reasonable care in the provision of medical services. It violated that duty in numerous ways that proximately caused the death of decedent. The negligent actions and omissions of VA Hospital and its employees in failing properly to manage decedent’s medical care and airway following the surgical procedure were actions and omissions where the United States would be liable to the plaintiff if it were a private person under the laws of the State of Georgia.

34. At all times material hereto, decedent was a patient of medical staff and personnel of VA Hospital.

35. In their examination and treatment, or failure to treat Plaintiff, the VA Hospital and its employees, apparent employees, or agents failed to exercise that degree of care, skill, and learning expected of a reasonably well-qualified healthcare provider in the same field in the same or similar circumstances.  Additionally, VA Hospital personnel and employees, while working within the scope of their employment, failed to possess and apply the knowledge, skill, and care of reasonably well-qualified, similar employees, in similar circumstances.

36. Defendant, acting through its employees, apparent employees, agents, or contractors failed to exercise reasonable care and failed to provide medical treatment necessary to monitor decedent following surgery.

37. As a proximate result of the negligence and malpractice of defendants,Plaintiff died.  Prior to his death, decedent experienced pain and suffering, and his estate has suffered compensable losses for wrongful death, including the monetary value of decedent’s life, together with loss of the value of life’s enjoyment. The decedent’s estate also suffered losses related to medical and non-medical expenses, funeral expenses, lost earning capacity, and lost household services.

38. At the time of his death, decedent had a spouse, co-Plaintiff. That spouse has been deprived of the companionship and services that would have been available to her.  The spouse has suffered a loss of consortium that is compensable under Georgia law.

39. Defendant’s actions and omissions are actionable under the laws of the State of Georgia.

40. Pursuant to Official Code of Georgia Annotated, Section 9-11-9.1, attached to this Complaint is an affidavit of an expert competent to testify, which affidavit sets forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

WHEREFORE, plaintiff prays that the court enter judgment for her individually and as personal representative of the decedent’s estate, that she be awarded compensatory damages plus costs, and such other relief as the court finds proper.

While some claims can be resolved pre-suit, it is essential that counsel is retained early on in the process to ensure that a proper investigation is conducted and that all of the unique to claims against the VA procedural requirements are met.

Attorney Robert J. Fleming has been handling wrongful death cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been injured or died as a result of the carelessness or negligence of others for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.