Recently we represented a 38-year-old Marine Corps Veteran who suffered permanent paralysis after visiting the Togus VA Hospital in Augusta (Togus) in 2011. When we first spoke to this client, we learned that he had already consulted with several lawyers who told him there was nothing they could do to help him.
We agreed to take the case, and filed suit against the U.S. government. After two years of litigation, we obtained a settlement for our client of $2.75 million, one of the largest such settlements obtained in Maine history. This article describes our client’s situation and the case brought.
Timely Treatment Is Critical for Spinal Cord Injuries
A spinal epidural abscess (SEA) is a rare, but well-known, medical condition that involves an abscess (usually bacterial) getting into the epidural space around the spinal cord. Left untreated, the abscess can grow and injure the spinal cord, through either direct pressure or damage to nearby blood vessels. The most important factor in recovering from SEA is the timeliness of the treatment. Without decisive medical treatment, SEA leads to paralysis or death.
Delay in Treatment Leads to Permanent, Irreversible Spinal Cord Injury
Our client went to Togus seven times in ten days in March and April 2011, complaining of severe intra-scapular back pain, loss of appetite, and inability to sleep. Initially, doctors assumed a musculoskeletal issue and prescribed medications for inflammation and pain. Eventually, they considered other possibilities, such as pulmonary embolism and pericarditis, but our client continued to worsen. No one at Togus ordered any advanced imaging of the spine, which would have identified or ruled out infection. Even after our client lost feeling in his feet and legs to the point where he could no longer stand up, Togus delayed the MRI.
The MRI revealed a large infection enveloping the patient’s spinal column in the area where he had first reported pain. Our client was rushed to another hospital for emergency neurosurgery, but it was too late. The infection had damaged blood vessels servicing the spinal cord, resulting in thrombosis and permanent, irreversible spinal cord injury. The neurosurgeon told our client he would never walk again.
Client Faces Difficult Rehabilitation as a Paraplegic
After his spinal cord injury, our client undertook rehabilitation at a VA facility in Massachusetts. He learned to use a wheelchair. The spinal cord injury left our client without functioning bowels or bladder, so he had to learn how to use a catheter and to perform an excruciating bowel protocol that takes several hours each morning.
Once back at home, our client faced the stark reality of having to live the rest of his life as a paraplegic. Before this incident, he was a social worker who cared for people with disabilities, but now he is the one in need of almost around-the-clock care. His wife was forced to give up her career to stay home and care for her husband and their young son. With a meager disability benefit, the family could barely pay the mortgage, and could not afford the basic necessities of a handicap-accessible vehicle or rehabilitation therapy.
Litigating FTCA Cases Requires Expertise and Specialization
In February 2014, we filed suit on behalf of our client against the U.S., alleging negligence in the medical care provided at Togus. Claims against the U.S. are brought under the Federal Tort Claims Act (FTCA). The FTCA incorporates Maine substantive law of medical negligence, but there are a number of important procedural differences.
- No Pre-Litigation Screening Panel – Cases proceed directly to the U.S.
- Two Years to File Claim – Claims are subject to the FTCA notice requirements, must be filed within two years of the incident, and must specify a dollar amount.
- No Right to a Jury – Cases are tried before a U.S. district court judge (or magistrate, if the parties agree).
- Special Rules Governing Costs and Fees – Limitations are in place for recoverable costs and attorney fees.
- Evidentiary Issues – In federal court, there is an argument that the heightened Daubert standard for admissibility of expert testimony will apply, rather than the more relaxed standard applied in state court. This requires preparing experts differently.
At Berman & Simmons, we have developed specialized expertise in litigating and trying FTCA cases. We have settled many of these cases and taken a number of them to trial, including a 2007 trial in which we obtained a judgment of over $1 million in a motor vehicle case against a federal Border Patrol officer, as well as the case of our client with the spinal epidural abscess, in which we obtained a judgment of $2.75 million.
$2.75 Million Settlement Promises to Change Our Client’s Life
There are many important ways this settlement will benefit our client and his family.
- Medical Trust – Allows our client to pay for the rehabilitation therapy and home care services he needs.
- Lifetime Annuity Payment – Ensures the family will be able to meet the cost of basic needs for the rest of their lives.
- Cash Payout – Enables the family to pay off the mortgage, renovate their home to make it accessible, purchase a handicap-accessible vehicle, and provide for their young son.
- Peace of Mind – Allows this family basic financial independence and security, free of constant anxiety about paying their bills.