On May 9, 2014 we wrote about the House’s investigation into secret waiting lists that may have lead to the deaths of forty or more veterans. Now the Chicago Tribune reports that federal auditors have visited the Edward Hines Jr. Veterans Affairs Hospital due to allegations that similar secret waiting lists were also used there. The Hines facility is in Maywood, a suburb of Chicago.
The Tribune reports that a social worker has alleged that veterans seeking care at Hines were placed on secret waiting lists, rather than the official waiting lists. This was allegedly done so executives could collect bonuses that are supposed to be reserved for executives who provide speedy care despite an ever increasing demand on veteran’s hospitals.
The president of the American Federation of Government Employees VA Local 781, Germaine Clarno, told Tribune reporters that he has actually seen the waiting lists and that multiple hospital employees have told him about them. Meanwhile, the director of the facility claims she has “received no evidence or specific facts about data manipulation.”
If it turns out that there were secret waiting lists at the hospital, those lists could have contributed to multiple incidents of medical malpractice. The most obvious type of malpractice in this case would be delayed diagnosis. Whether it is a veteran with cancer who could have been diagnosed in an earlier stage or one who suffers a small stroke that goes undiagnosed so he never knows to take steps to prevent a future stroke, delayed diagnosis can kill. Given that the facility also provides mental health treatment, delayed diagnosis could also lead to self-injury or suicide.
Those harmed by these secret waiting lists would likely find that their claims are governed by the Federal Tort Claims Act. When a civilian files a suit against his or her doctor for malpractice and wins, usually that private doctor has medical malpractice insurance of some sort. That insurance pays the claim. The federal government is not all that different, but it is a little different. Under the Federal Tort Claims Act, it is self insured. The federal government is liable for the negligent or wrongful acts (or failures to act) of its employees when its employees are acting in the scope of their employment. So instead of suing the individual employee who is to blame for the injury, the injured person would litigate against the United States.
There are four things a plaintiff has to prove to succeed in recovering his or her losses under the Federal Tort Claims Act. They are:
1. He or she was injured by or had his or her property damaged by a federal employee
2. The employee was acting within the scope of his official duties (This can become a complex analysis but on a basic level means that the employee who hurt the plaintiff must have been doing his or her job when he or she hurt the plaintiff).
3. The employee was acting negligently or wrongfully.
4. The negligent or wrongful act must have been the “proximate cause” of the injury or damage the plaintiff is suing over. (This means that it doesn’t matter that the employee was negligent if that negligence is not the proximate cause of the injury. Proximate cause is a complicated concept that will be addressed in a later post).