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Partial Victory for Defendant, but VA Hospital Malpractice Lawsuit Can Go Forward

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Coatesville, PAThe defendant won a partial victory, but only a small one in a recent decision by the US District Court of Appeals for the Eastern District of Pennsylvania. The majority of the good news was reserved for the plaintiff in the VA hospital malpractice lawsuit, after the court determined the defendant's motion to dismiss the entire action was unwarranted.

It's a heartbreaking story, when you consider that a veteran went into the hospital to be treated for post-traumatic stress disorder (PTSD) only to never recover. In fact, Michael Keating was reported to become unresponsive while an inpatient at Veterans Administration Medical Center in Coatesville, Pennsylvania. Keating never regained consciousness and passed away after remaining in a coma for several months.

There was no information as to the age of the man at the time of his death or the circumstances that led to his diagnosis of PTSD.

The December 3 issue of Health Law Week noted that Keating's spouse sued Veterans Affairs (The VA) for wrongful death, alleging veterans medical malpractice. The defendant, in turn, moved to have the action dismissed on the grounds that the Standard Form 95 provided by the deceased veteran's widow presented only a survival claim.

The district court concluded that, under applicable precedent interpreting the Federal Tort Claims Act, even if the Standard Form 95 was technically deficient, it provided sufficient notice to the VA of the wrongful death claim to permit the VA to conduct an investigation and settlement. Prior correspondence from the VA to Keating's widow referring to her assertion of a wrongful death claim supported this conclusion in the court's view.

The court noted that under Pennsylvania law, damages for loss of consortium might be recovered in a wrongful death action. Keating's widow, as a result, could not pursue a separate loss of consortium claim. On that basis, the district court granted the VA's motion to dismiss that sole claim, but denied the motion in all other respects.

As a result, the veteran medical malpractice lawsuit on behalf of Michael Keating can go forward, with the exception of loss of consortium—the lone aspect of the lawsuit that was struck down and dismissed by the court, in deference to the motion filed by the defendant.

Medical negligence lawsuits are often brought by injured veterans, or by the families or estates of veterans who have died, alleging substandard care. Critics of the VA have long advocated that returning veterans, regardless of age or the particular conflict, are deserving of the finest care available in exchange for putting their lives on the line to serve and defend their country.


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Posted by

My husband, Michael J. Keating, an honorable Vietnam combat Marine, was left lying on the floor for a recorded 7 minutes (VA medical records, VA police report, VA employee written statement, VA employee testimony) without any assistance to breathe even though this lack of action IS against the court accepted standard of care-American Heart Association's ACLS Guidelines for a Cardiopulmonary Emergancy. Lack of action is also against VHA MANDATORY Directives-VHA Directive 2008-015, VHA Directive 2008-008, December 2000 National Committee on Ethics (Introduction) AND subsequent VHA Directive 2008-063 and VHA Directive 1177. VHA MANDATORY Directives are found on VA website. ACLS (2005) is found on AHA website. There was only 1 VA health tech for 33 vets on duty at this time. VA tech is certified in CPR, it is his duty to give CPR. In fact ACLS states that for a respiratory emergency compressions are given FIRST before 911. NO physician (VA or expert), even those that presently teach ACLS and one that was recently re-certified in ACLS ever disclosed the FACT that a person has to have CPR while awaiting EMS/MERT team arrival. We lost the case!! I do not understand. If court accepted ACLS as standard of care and many parts of the ACLS address the lifesaving abilities of quickly applied CPR then what happened?
The VA health tech had a duty to assist Mike with CPR. He didn't
Breach of the Standard of Care-According to many parts of the court accepted standard of care-ACLS-there was-Leaving Mike lying on the floor with NO CPR from 1:36 am to 1:43 am-arrival of MERT
Breach of SOC contributed to injury/death-ACLS states that for every minute without CPR a person's chance of survival decreases by 7-10%, that CPR can double/triple a person's chance of survival, and that after 4 minutes without CPR/O2 the brain suffers PERMANENT brain damage!
Keep on top of all that is going on with your case. Ask questions no matter what. It is your life and/or your love ones.
I filed an appeal but was told that since the District Court found that the MERT team arrived in 3 minutes (1:40 am-1:43 am) then they were within the standard of care (or words to that effect). THAT FACT IS INCORRECT ACCORDING TO VA RECORDS. (Did the court have all of this? Maybe not, I don't know).The time was almost double that. The 1st code of that morning was 1:36 am (VA police report, VA employee written statement), 2nd code of that morning was 1:40 am (VA medical records, VA employee testimony), MERT arrived at 1:43am (VA medical notes, VA employee testimony). During that entire time Mike was left on the floor with NO CPR as testified by the only VA employee present and the only vet present. VA medical notes, and vet testimony states that Mike was having difficulty breathing when vet heard Mike struggling to call for help at 1:30 am.The Appeals Court also said there was no expert evidence about CPR. THERE IS--ACLS! In addition I believe that giving CPR falls into the exception to expert evidence..."where the so simple, and the lack of skill or want of care is so obvious, as to be within the experience and comprehension of even nonprofessional persons." Chandler v. Cook, 265 A.2d 794, 796 (Pa. 1970). Doesn't that describe CPR? I requested a rehearing, I was denied. My husband's MOS was a machine gunner. He did tunnel rat duties a few times....and more. He was a good man that struggled with the effects of war. Mike deserved better. Mike deserves truth, honor, justice, support and more. They (vets) all do. Maybe one day Mike will receive it. Can anyone explain? Thank you

Posted by

I am currently a participant of the VA's Chapter 31 Vocational Rehab Program. The Federal Government has thoughtfully and specifically outlined the requirements and goals of this program in 38U.S.C. chapter31 and CFR 3.1.

The problem I am having is that none of the personell who are in charge of me and my participation in this program have absolutely no knowledge of the regulations of the program and what the program entitlements are to its recipients. This has caused me to waste a great deal of time, effort and stress. They are not paying me to what I am entitled, do not have a clear plan of action for my educational goals so therefore are unable to assist me in completing my education in an expeditious manner. They do not even know the correct courses I need to take or what college to take them at. If you could help I would be grateful. I can be reached at 1-609-271-7981 or my e-mail


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