Secret VA Nursing Home Data and FTCA Claims

Recently, news has surfaced that the Veterans Administration has been hiding nursing home data from consumers. The agency tracked quality statistics on nursing homes for several years but has kept the data from consumers. According to a USA Today and Boston Globe investigation, almost half of the VA nursing homes nationwide received a quality ranking of one out of a possible five – the lowest possible. The VA finally made some of its ratings public last week after receiving questions from the Globe and USA Today about all the secrecy. VA officials claimed that President Trump wanted to release the ratings all along and blamed the Obama Administration for not making them public earlier.

According to the story, there are several VA nursing homes in DC, Maryland, and Virginia, with one-star ratings. These nursing homes are located in Salem Virginia, Richmond, Virginia, Hampton, Virginia, Washington, DC, Baltimore, Maryland, and Perry Point, Maryland. If possible, consumers should avoid these facilities at all costs.

Suing the VA for Nursing Home Negligence

Normally, the federal government is immune to lawsuits under the doctrine of sovereign immunity. The Federal Tort Claims Act (FTCA) provides an exception to this doctrine. Veterans and their dependents can sue the VA for medical malpractice by its employees. Any claim under the FTCA must be specifically for (1) money damages, resulting from (2) “injury or loss of property, or personal injury or death” due to the (3) “negligent or wrongful act or omission” by (4) “any employee of the government “who was (4) “acting within the scope of his office or employment” and (5) “under circumstances where the United States, if a private person, would be liable” to the claimant (6) “in accordance with the law of the place where the act or omission occurred.”

Two significant factors distinguish an FTCA claim from other governmental claims acts. First, there are no caps on damages in FTCA claims. Maryland caps only non-economic damages (pain and suffering) for nursing home neglect cases but does not cap economic damages. Virginia caps all damages in nursing home negligence cases. Second, a potential plaintiff must present a claim to the federal agency whose activities gave rise to the injuries and allow the agency an opportunity to settle the claim. If the agency denies the claim or takes no action, the claimant may bring suit against the U.S. in a federal court.

Time Limits Under the FTCA

Section 2401(b) of the FTCA bars any tort claim against the United States unless the “action is begun within six months” after the federal agency mails notice of its denial of the claim. 28 U.S.C. § 2401(b). Maryland law erects even more hurdles. A plaintiff must submit a medical malpractice claim to the state health claims arbitrations office before filing the claim in regular court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(a), -04(a)(1)(i). A plaintiff must then submit an expert report certifying that the claim is meritorious within ninety days. § 3-2A-04(b)(1)(i)(1). Once a claimant has submitted an expert report, he may waive arbitration and proceed to court. Id. § 3-2A-06B(a). The case must be filed in the appropriate federal court within 60 days of waiving arbitration.

The Fourth Circuit has held that “beginning an action,” under the FTCA, means filing the suit in federal court, not just filing a statement of claim with Maryland’s arbitration panel. See Raplee v. U.S. This is an extremely draconian doctrine, as it requires plaintiffs to (1) acquire all necessary expert reports; (2) file in HCADRO; (3) waive out of HCADRO; and (4) file in federal court all within 6 months of the VA’s denial of a claim. It is a complicated system to master, but the law is the law.

Damages Under the FTCA

You can recover the following damages in a nursing home negligence action against the VA:

• Noneconomic or General Damages. Non-economic damages include pain and suffering. For wrongful death beneficiaries, it includes grief and mental anguish from the loss of a loved one.
• Economic or Special Damages. Economic damages may include lost wages and services, cost of medical care, and disability.
• Future Damages. Future damages are the economic and noneconomic damages that are reasonably certain to flow from the injury after a claim is settled. In many jurisdictions, some aspects of future damages, e.g., lost earnings and lost services are subject to reduction to present value.

If you, or a family member, were injured in a VA nursing home, contact Peter Anderson of Ketterer, Browne & Anderson.