VA silent on compensating for endoscopic mistakes

CHATTANOOGA, Tenn. — An attorney for veterans potentially exposed to HIV and other infections by colonoscopies at three Department of Veterans Affairs hospitals said his clients are waiting to hear if they will be compensated for mistakes that led to congressional hearings and new VA spending on patient safety.

A spokeswoman for the VA declined to comment about prospects for compensation. Katie Roberts said the more than 10,000 veterans who have been getting follow-up blood checks since February have the option of filing a complaint in a claim just like other VA patients.

She said the VA has been advising the affected patients that they have the option of filing a claim.

But Nashville lawyer Mike Sheppard describes that claims process as cumbersome, particularly for veterans who have tested positive for HIV and hepatitis.

“Some of these veterans are scared,” said Sheppard, who has about 50 of the VA’s former endoscopic patients as clients. He said complaints about VA medical care must be filed under the federal torts claim law.

Sheppard said his clients are telling him that VA officials have sent them letters and in some cases have contacted them by telephone “stating they are sending them some documents and they will be considering some compensation.”

Roberts said the VA has made no offer of any special compensation. She declined to comment about any potential benefit for the affected veterans beyond continuing to provide them medical care. Roberts said Thursday that she is trying to provide VA records on medical complaints.

An update on the VA’s Web site shows that a seventh veteran has tested positive for HIV among the former patients exposed to mistakes with rigging or cleaning endoscopic equipment at VA hospitals in Murfreesboro, Tenn.; Miami and Augusta, Ga.

Another 12 veterans among those who have heeded VA warnings to get follow-up blood checks have tested positive for hepatitis B and 36 others have tested positive for hepatitis C.

The VA and independent doctors say those rates of infection are far below what would normally be found among similar populations. A top VA doctor has said there is no way to trace the infections to the VA — or the mistakes he described as human error — but some medical experts disagree.

A report by the VA inspector general, presented to congressional oversight panels, suggests the VA has more widespread problems. Surprise inspections in May found that only 43 percent of VA medical centers had standard operating procedures in place for endoscopic equipment used in colonoscopies and other procedures and could show they properly trained their staffs for using the devices.

Roberts has said the VA is releasing $26 million from reserve funds to buy new equipment to improve the cleaning of endoscopes and other reusable medical devices.

The VA on its Web site says it “will continue to notify, inform, and treat all potentially impacted veterans, regardless of risk, cause, or harm. Many people incur injury as a result of medical errors that could have been prevented - Unfortunately, many health care organizations do not voluntarily disclose their problems to patients or the broader public. In contrast, it is VA’s policy to actively seek out quality problems, discuss them openly, and tackle them head on.”

U.S. Rep. Harry Mitchell, D-Ariz., who is chairman of the House Committee on Veterans’ Affairs subcommittee that held a June 16 hearing and has directed the VA’s inspector general to further investigate whether the agency is properly using and sterilizing equipment, said in a statement Thursday that “we need to do right by affected veterans.”

Mitchell said in an e-mail statement that it would be inappropriate for him to comment on “pending litigation.”

Some veterans were warned in February to get tested, and more were alerted in March when the Miami hospital backtracked on its previous conclusion that it didn’t have a problem.

Michael Priest, a 59-year-old Navy veteran who had a colonoscopy at a Murfreesboro VA hospital last year, has said he received a telephone call from a VA nurse who told him his follow-up blood test showed he had HIV. A week later, he was informed a second test by the VA was negative.

Priest said the first call left both him and his wife terrified and he no longer trusts the VA to provide his medical care.

“The immediate terror of that situation has lessened,” Priest told The Associated Press. “The fear has subsided due to the independent testing especially. We are calmer about that fear situation just a little bit angry that it even had to happen.”

Priest said Thursday that the VA should compensate veterans whose positive tests for infections can be traced to the hospital mistakes.

“That still isn’t the main point as far as I am concerned,” Priest said. “The system is going to have to improve. That is the main thing about this.”

Larry Scott, founder of the veterans’ advocacy group VA Watchdog dot org, said the VA has a record of paying damages, but only if there is a class action lawsuit.

In a January settlement of a class-action suit, the VA agreed to pay $20 million to veterans for exposing them to possible identity theft in 2006 by losing sensitive personal information. The money was to be paid to veterans who could show they suffered actual harm, such as physical symptoms of emotional distress or expenses incurred for credit monitoring.

Scott said the VA should compensate veterans who suffer any emotional distress from the endoscopic mistakes.

“Technically, the VA should stand up and say not only are we going to take care of you but we should compensate you,” Scott said of the affected veterans. “They won’t do that. That would admit liability.”