Medical Malpractice

The Murfreesboro Tennessee VA announced that it had committed a diversion from accepted medical protocol in regards to veterans who had colonoscopies performed in the VA of Murfreesboro. The lapse in accepted medical standards may have led to the veterans being exposed to HIV and Hepatitis C, due to a valve that was not properly sanitized and or attached to the medical machine used in the procedure. The valve in question can be non sterilized due to liquids that may come into contact with it during the procedure, the medical procedure was fully explained to me by a registered nurse familiar with the operation. The actual contaminated part may have never come into contact with you, but through other means diseases could have been transferred because of the non-sanatized valve. So with this said the government will settle with all affected, not at all, those days are gone if they ever were really in existence.

Using the VA as an example of how times have changed in regards to plaintiffs, lets look at the results of the medical standard deviation, in this case Veterans were exposed to HIV and Hepatitis C which are deadly diseases, you can have one or both and not be aware of it. If you test positive you then have what are called damages, and these damages are the result of the acts of the VA. That means that you do have rights as against the Federal Government, but just because you have rights does not mean the government is going to concede it is responsible for damages, the times of the changing plaintiff's case are here, and all the defense bar knows it, including the government defense attorneys.

With all cases there now appears that the VA may try to mount a defense in regards to how individuals contracted the diseases, the defense appears to center around the thought of how can you prove you got the disease from VA, it will be a defense that will require quite a lot of work to defeat. Many times people are under the impression that the government or corporations will simply hand over some type of compensation just because they made a mistake. If the those days ever existed they are long since gone, whether through TV commercials, the Mcdonald's coffee case, or the dry cleaning case of pants, the public has grown weary of lawsuits, as a result insurance companies, the government, and corporations are not so quick to simply agree to settle. The defense side of cases is aware of the climate we are in, I see no change in that climate, the clock will not reverse itself.

So if there is no change in how the defense approaches a case such as the VA case, what then? There must be a fundamental shift in how the plaintiff's attorney approaches their claim, it has to be a very centered approach, and it has to be thought through from the very moment a case is taken on. A case such as any from the VA situation cannot be approached in a settlement type fashion, there are simply to many defenses available that the government can use, to use a settlement approach from the beginning of the case is to use the tactics of forgone days. The VA case is an example of how one might be lured into thinking that you should not worry about litigating, this will be open and shut, that is incorrect logic, there will an attorney representing the VA, and why would they not pursue every avenue of defense, as the government is their client, and they have an ethical obligation to protect their client just as every attorney has that obligation. It is just not sound legal strategy to believe because someone or thing admits they committed error that they will not defend their position.

What are you rights as a veteran against the Murfreesboro VA? Your rights are under the Governmental Tort Liability Act, and Yes you do have rights. If you do test positive for any diseases related to this treatment, you have what are referred to as damages, and yes you do have legal rights, although they are somewhat different because it involves the United States Government. You have the right to sue, that is to bring a lawsuit for the malpractice committed against you, however the Federal Government is far different than a corporation in regards to seeking monetary damages in court. Your rights are no different, but the limit of damages you can recover and the certain civil procedure rules apply to a GTLA claim, in Tennessee you cannot non-suit a GTLA case, this is allowed in a non-GTLA case, should you file a non-suit in Tennessee on a GTLA your suit cannot every be brought back up, ever. A non-suit means dismissing the lawsuit and bringing it back later, that is strictly prohibited under the GTLA. The GTLA was put into place to limit the liability of towns, cities, and governmental entities.

With changing times, the GTLA, and available defenses, the days of simply filing a suit and waiting for settlement are long since over. The strategy of focusing on trial and working the case with a focused approach is the only way to work through cases, the climate is forever changed in regards to plaintiffs.

Daniel L. McMurtry, Esq