In its decision filed on March 4, 2016, the United States Court of Appeals for the Second Circuit (“Appellate Court”) ruled that an injured veteran who was rendered a quadriplegic as a result of medical negligence at a VA Medical Center should not be required to obtain future medical care at the VA, stating, “Federal law does not require that a veteran injured as a result of the VA’s malpractice be forced to continue under VA care for lack of financial resources and be subject to a concomitant offset, and New York state law does not warrant such an offset.”
The veteran had undergone spinal surgery at the VA on November 4, 2004 to remove a degenerative disc and osteophytes. When he awoke from anesthesia, the veteran complained that his legs were weak. X‐rays and an MRI revealed that he suffered from mild cord impingement at several points in his spine, with excessive edema in the spinal cord. He was diagnosed with incomplete quadriplegia.
After filing a claim under the Federal Tort Claims Act with the VA that was not resolved administratively, the veteran filed a civil action in the U.S. District Court for the Northern District of New York, which bifurcated the trial on the issues of liability and damages. After finding in favor of the veteran on the issue of liability, the federal judge awarded the veteran $4,468,859.91 in damages ($500,000 for past pain and suffering, $1.5 million for future pain and suffering, and $2,469,859.91 in economic damages).
The federal judge offset the economic damages award for future medical care by subtracting out for medical care and supplies that would be provided for free by the VA, finding that the government should not be forced to pay for services that the VA could provide for free. The veteran appealed.
The Appellate Court stated that there are competing rationales militating for and against such an offset: on the one hand, it is axiomatic that the government does not pay twice for the same injury; on the other hand, it is particularly unseemly to force a plaintiff to receive medical services from the tortfeasor responsible for his injuries.
The Appellate Court held that federal law does not require an offset against a veteran’s damages award for future medical care that could be provided at a VA facility: federal law disfavors an outcome whereby a litigant is obligated to seek medical care from the party whose negligence created his need for such care simply because that party offers it without charge.
The Appellate Court quoted from a federal appellate case from the Third Circuit in which the Third Circuit stated, “A victim of anotherʹs tort is entitled, we think, to choose, within reasonable limits, his own doctor and place of confinement, if such care is necessary. To force a plaintiff to choose between accepting public aid or bearing the expense of rehabilitation himself is an unreasonable choice. The plaintiff may not be satisfied with the public facilities; he may feel that a particular private physician is superior; in the future because of over‐crowded conditions he may not even be able to receive timely care. These are only a few of many considerations with which an individual may be faced in selecting treatment. The plaintiffʹs past use of the government facilities does not ensure his future use of them. He will now have the funds available to him to enable him to seek private care. He should not be denied this opportunity.”
The Appellate Court further held, “we cannot make a fair determination about whether the pain and suffering award is inadequate. We thus vacate the award of damages for past and future pain and suffering … [t]he district court is free, on remand, to set damages as it sees fit, but it must explain its rationale.”
Source Malmberg v. United States of America, 14-3555-cv(L)
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