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Interview with VA Medical Malpractice Attorney Micheal Archuleta

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Austin, TXWhen it comes to filing a lawsuit against the VA for medical malpractice, attorney Micheal Archuleta is the expert. His firm regularly litigates Federal Tort Claims Act cases and it has 4 of the largest verdicts and 2 of the largest settlements in the 61-year history of the Federal Tort Claims Act.

Perhaps more so than other areas, it is very important to pick the right lawyer regarding VA medical malpractice lawsuits. Archuleta says many firms will take your case and send in the form, hoping it will get settled.

"We do that as well, but when the government denies your claim, we can go the next step and take them to court," he says, "and I am a physician as well as an attorney so we can do things in-house that will take other firms much longer to do. For example, the Dominguez Offer was zero and the result was a $18.6 million judgment. This year, the Brown offer was zero and the result was over $13 million.

LawyersandSettlements (LAS): Why is care at VA hospitals substandard?
Micheal Archuleta (MA): The two biggest reasons are lack of continuity of care and lack of intensity of care: Patients have serious conditions but they get blown off: they could have a minor or major condition and it's the duty of the doctor to determine the difference; when this happens, the doctor (or assistant) assumes it is the minor condition without ruling out the major condition, so down the road, that stomach ache might really be cancer.

Currently, about 8.3 million people are eligible for government health care, including VA care. Retirees are older with more complex conditions and require more care. Since the 1950s, we have seen an increase of retirees from 8 percent to over 50 percent. And since 1987-- through base closures—35 percent of facilities that provide care have been closed and many others have cut services.

At the same time there has been a decrease in people seeking care and that care has become centralized--everyone is going to the same institution. As well, in time of war there is a big jump in veterans. Health care providers are being deployed oversees which spells an increased use of auxiliary personnel here at home—chances are you'll see a physician's assistant rather than a doctor. Overall, access to care can be difficult and inefficient and there is often a lack of preventative care and lack of choices.

LAS: what do you mean by lack of continuity?
Patients often don't see the same doctors on return visits, sometimes allowing complications of chronic disease to go unnoticed. Our firm has many veteran clients who are dependant on the VA for healthcare but don't get enough attention paid to their conditions; sometimes the problem is with the same doctor and they hit a stone wall.

For example, some patients can't get a referral to a CAT scan or MRI for severe headaches because the doctor is too busy and draws a quick conclusion without adequate testing, calling the headaches migraines—when in fact the patient has a brain tumor. Many cases of VA negligence are uncovered when a patient becomes fed up with the system and seeks outside medical care. I have seen many cases where on the first visit to an outside doctor the diagnosis that the VA had been missing for years is made.

LAS: Are most issues preventable?
MA: All malpractice is preventable-- that is the definition of malpractice. But negligence is unacceptable. I get more inquires regarding VA than any other government agency and not particularly against doctors but health care providers in general; sometimes a doctor rarely sees the patient because nurse practitioners and physicians' assistants do much of the clinic work.

LAS: Is it more difficult to sue the VA than a private institution?
The VA is an agency of the US government so you have to bring a written claim against the VA and it has to be filed within two years. Once the VA has the claim, they have six months to evaluate the claim, during which time you cannot file a lawsuit. After six months, a lawsuit against the US government can be filed in federal court.

There are many pitfalls in the process of bringing a claim against the government so having an attorney handle your claim is preferable. You can do it yourself and sometimes the government will pay a smaller claim amount but the problem is that some of the pitfalls can be fatal. For instance, if you don't write the exact amount you are claiming in dollars and cents, the claim is null and void. The form has to be signed and you have to file a separate form for each person. For example, in a wrongful death suit you need a form for the estate, one for the wife, one for each child, etc., otherwise you give up part of your claim.

It gets complicated and the government doesn't make it user-friendly--to their advantage.

And to make it more complicated, the law of the case differs from state to state. The claims process often requires the claimant to jump through many hoops. Sometimes, overzealous VA counsel will try to beat down the claim before the process starts by inappropriately rejecting the claim forms citing an incorrect legal basis: You send in a form and they will send it back marked 'deficient', even though it is a valid claim. Some overzealous VA counsel tries to be judge and executioner all at the same time.

What happens frequently is that the claim is completely ignored and you may have difficulty finding out who is handling it. Or it can get assigned to someone who doesn't follow due diligence in the evaluation procedure.

LAS: How does the evaluation work?
MA: First there is a bureaucracy: it is easier for an evaluator/adjustor to deny a claim than having to substantiate the claim for payment to their supervisors---so the odds are stacked against you in the beginning. Some adjustors are very good and try to help the vet but some are apathetic and actively try to deny the claim. Where your claim lands is a bit like a crap shoot.

The VA does pay, although it is difficult to pay bigger claims. The adjustor will only have $100,000 of authority and will have to go to a higher level to get authorization for a bigger pay-out, and up the monetary ladder…

LAS: How can a VA lawyer help a vet with these issues?
MA: The first thing is to make sure the forms are correct and from the right people. Then the attorney can provide an expert witness and articulate the claim in a way that is more likely to get the attention of an adjustor. Having a law firm represent the vet can help push the adjustor. For instance, we have a system of regularly contacting the adjustor to determine the status of a claim.

LAS: What can a potential claimant do before calling you?
MA: The single best thing is to round up a complete set of the relevant medical records. It is easier to get records with the VA than the private sector. A client must focus on what the VA did—it has to be negligent and what they did must have caused significant injury or death.

Some people have a litany of complaints, but only one of them has caused the severe injury. Usually cases arise from a single issue, and that is how you win cases, by focusing on a single issue. You don't try to shot-gun it with multiple issues that are non-winners.

Contact Information:
Visit Micheal Archuleta's website or e-mail: MyCase@MilitaryLawAttorney.com

Check back with LawyersandSettlements in a few weeks for a second interview with Micheal Archuleta: Military Medical Malpractice Misconceptions.

READ ABOUT Medical Malpractice LAWSUITS

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