DELAYED LUNG CANCER DIAGNOSIS SETTLES FOR $500,000

Delays or failures in diagnosing cancer are regular cases in our nationwide FTCA practice. We’ve done a lot of them.

On one level, this case was a typical one. Imaging studies and clinical symptoms were essentially ignored. By the time the veteran was diagnosed, he was in bad shape. Treatment was started but he died after a fairly short time.

On another level, the case was a sticky one. The treatment at issue took place at the Birmingham, Alabama VA Medical Center. Under the FTCA, the “substantive law” of the jurisdiction is used. In this case, that would be Alabama law. That state treats wrongful death matters in a way unlike any other jurisdiction. Only punitive damages are recoverable.

The Federal Tort Claims Act specifically excludes punitive damages.

Congress enacted a work around to address this situation. This means a claimant has an FTCA remedy, albeit not a very good one. Only economic losses can be recovered.

The veteran was relatively young – I (now) do not think of early 60’s as old – and he was still working, so the widow had a valid economic loss. At most, the loss was a bit over a million. More likely, it was closer to half that figure.

The VA lawyer assigned to the case was one of the good ones. She acknowledged it was a case of liability. We had frank discussions about the case. Any settlement above $500,000 would require approval from the Department of Justice. That’s a slow process and under the circumstances it was not at all clear that a high six-figure settlement would be approved, let alone one for a million dollars or a bit more. The VA lawyer was willing to pay the agency authority. After discussions, the client agreed to accept the $500,000

As things sometimes happen, there was a further complication. The couple had twelve adult children, many of them which they had adopted after they were fostered by them. Not surprisingly, some of those relationships were problematic ones. The agency which pays settlements, the Treasury Department Judgement Fund, balked. It wanted more information about the children, even though none of the children had an economic loss. I feared we would end up needing state court approval which could have taken a long time and added unneeded costs which would impact the widow’s net recovery.

We went back and forth. The VA lawyer worked with us and the widow finally got paid. She was able to buy a new home and try to move forward with her life.

The point of this tale is not just to brag about how much money we got this client. Our great advantage in this case is that we know what we are doing when it comes to FTCA cases. We understand how the state law interplays with the federal process. We know how it all works. Most of the lawyers on the other side are familiar to us – and we are familiar to them

Experience matters and when it comes to VA and military hospital malpractice, we have a lot of it. The FTCA is our bailiwick and we are very skilled with such matters.