Taxpayers have shelled out $871 million in medical malpractice settlements over the last decade to make up for mistakes by the Department of Veterans Affairs (VA), while the employees who created the liability often also continued to collect checks.
Settlement payments have gone up sharply in recent years, totaling $230 million since 2014, with this year by far the most expensive on record even before it closes.
The VA has made 4,353 malpractice settlements since 2006, for an average award of $200,000. The number of cases per year has risen from 322 in 2006 to 541 last year. Eight cases have involved settlements of $1 million or more.
The settlements allow the government to avoid admitting guilt, which often bolsters VA claims that its employees did nothing wrong, even when the department’s 770 in-house lawyers apparently think there’d be enough evidence in court to the contrary.
The Daily Caller News Foundation reported Dec. 9, 2015, on the case of Fredrick Kevin Harris, a 240-pound nurse’s aide who witnesses say beat a 70-year-old VA patient to death. The coroner, prosecutors and inspector general agreed.
The VA cleared Harris in an internal investigation, took no disciplinary action, and insisted there was no negligence and all policies were followed. Harris still works at the hospital. But that didn’t prevent VA from paying a $215,000 settlement in the Harris case.
A VA spokesman told TheDCNF the government “may settle tort litigation matters for any number of reasons” even if VA investigations conclude it was “not culpable.”
Rep. [crscore]Jeff Miller[/crscore], chairman of the House Committee on Veterans’ Affairs, told TheDCNF VA is paying twice by keeping incompetent employees on staff while also having to clean up the legal messes they create.
“The fact that VA reached a settlement agreement with the victim’s family in this case appears to be a tacit admission that the department’s actions were wrong. But the key question VA leaders must now answer is ‘who will be disciplined for the wrongdoing and when?’” Miller told TheDCNF.
Miller and other VA critics say the department enters into settlements in part to protect bad employees, whom it has seemed reluctant to fire. The lack of any finding of wrongdoing in court is in turn used as evidence that the employee should not be disciplined.
“Are some of these settlements you paying people off to hide your misdeeds?” asked Andrew Kloster, an expert on federal courts at the Heritage Foundation. “The government uses settlements to manage their public image, I think that’s obvious, but it’s routine practice. The perennial frustration is they can settle and then you’re not going to get something on the books.”
No one wants “everything to go to trial, because then it would cost a lot more than a billion dollars,” Kloster told TheDCNF, noting that busy Department of Justice attorneys, not VA lawyers, represent the department when a case goes to trial.
The key question, he said, is “In what percent of the settlements do they lead to employees being disciplined or fired?”
The Harris settlement was completed before his criminal trial on manslaughter charges. Based on public records, it was not apparent that the dead veteran had close relatives, so it was unclear who agreed to accept the $215,000 payment.
Lawyers say that while it can be expensive to litigate even groundless lawsuits, it’s more expensive for an organization to give payouts to anyone who threatens action, because it sets a precedent for others to make frivolous claims. The 770 in-house lawyers also keeps costs down.
Settlements often have confidentiality clauses that may keep veterans from discussing their bad experiences with the news media or other public outlets.
The VA has little monetary incentive to avoid keeping reckless employees on the payroll because settlements are paid out of a different department’s money. The Department of Treasury has a “judgment fund,” an “indefinite appropriation” that can pay out money for other agencies’ errors.
A VA spokesman said there is a payment in about 27 percent of tort claims filed. He said that the VA had 93 million patient visits in 2014, and only 0.0004 percent of them led to malpractice settlements.
The year 2014 was “unusually higher” than normal, the spokesman said, “largely due to the payment of four settlements and judgments that total over $30 million.”
If the VA has little skin in the game when employee misconduct is involved, employees themselves have even less. Sometimes, employees go undisciplined, while in others VA enters into separate confidential settlements with them that include huge payments followed by their resignation.
After VA’s IG concluded earlier this year that the actions of Rebecca Wiley, the director of a Georgia hospital, contributed to nine deaths, the department paid her $76,000 in a confidential settlement and Wiley retired, according to the Augusta Chronicle. The Treasury Department data includes few details about individual cases, making it impossible to know if relatives of the nine dead also received payments to fend off legal action.
The VA said that if there is a settlement or judgment, the VA’s Office of Medical Legal Affairs reviews whether it was due to misconduct or incompetence or another factor and “makes determinations as to whether these practitioners should be reported to the National Practitioner Data Bank and their names reported to the state licensing boards.”
Sen. [crscore]Elizabeth Warren[/crscore]’s “Truth in Settlements Act,” which passed the Senate in September, is aimed at ensuring that companies don’t use settlements with government regulators to cover up misdeeds, saying that these agreements were too often confidential.
A Warren spokesman did not respond when asked if the Massachusetts Democrat shares the same concerns when a government agency is the alleged wrongdoer.
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