Your Honor I Object

Federal Circuit Gives Vet a Second Chance

The Federal Circuit recently decided the case of Cushman v. Shinseki and reversed the Court of Appeals for Veterans Claims.  Seems the VA improperly "modified" the mans medical record with false or inaccurate entries that caused the VA to deny his claim for unemployability (TDIU).

Back in the 70s the medical personnel or staff changed his medical record that was later used in deciding the claim.  He has severe back problems and had been rated 60% the highest allowed by the DVB.

The claim was heard based upon denial of Constitutional rights: the right of Due Process.  This is a unique petition of first impression.  The VA argued up and down that the mans rights were not violated and that he was not entitled to a rehearing.  Earlier in the case the VA requested that a negotiated settlement be granted which the court okay-ed.  But the settlement was never completed satisfactorily.

So now, the Court has granted the Vet a rehearing with orders to review the claim at the Board of Veterans Appeals or Regional Office (we shall see where exactly it goes) using the unaltered and proper medical record as the source of the claim for unemployability.  The main issue is the correct starting date for his claim as TDUI was finally granted in the 90's.

Now would be a good time for the VA to give the man a break and give him his proper due.
It is a shame that our good Veteran was not given the proper respect (even if the VA was correct using the correct medical evidence) for all this time.  I say he has earned it, how about you?

VA Cancer Unit Failures Show Risks in Public Plans

The VA Medical Center in Philadelphia has been shown to have improperly performed radiation seed implants for prostate cancer in most of the patients treated.  The actions went unreported and under investigated by both the VA and the NRC.  Accreditation surveys by the Joint Commission did not uncover the lack of peer review and expertise in the unit.  Some patients were apparently seriously damaged required extra more invasive treatment and had their lives turned up side down.

This occurred in spite of the fact that the VA went with a private contractor for the publicly run VA Medical System.  The University of Pennsylvania is well regarded and it was expected that the outside experts would take care of everything.  Unfortunately, at least one Surgeon/Oncologist had little direct experience in the procedure and no one else peer reviewed his work or did other supervision during a several year period.

The Surgeon altered his operation procedure plans when it was discovered that the radioactive seeds actually ended up in the patient bladder or other nearby areas (causing radiation damage in some cases) and not certainly adequate to treat the patient's cancer.  The VA did not take aggressive steps to report or review these difficulties seeking in stead to keep things quiet.

So if a public plan can hire what seems to be experts in a system usually experienced in such matters and regularly working with Medical School Deans Committees and Graduate Education, how would that auger for a government wide public health plan?

Well, for sure there is a lack of expertise and similar calamities would likely befall these plans.

The VA Secretary must now act with great authority and thoroughness to keep these errors from reoccurring.  VA Senior Management is charged with running a medical system devoted to giving the very best care to our Nation's Veterans and being a model for a well run health care system.

As we can see, physicians and their leaders do not always do a good job of policing themselves and ensuring that mistakes are identified, analyzed and prevented from recurring.  We have seen the enemy and it is us.

Memorial Day and My Supreme Court Admission

I have returned from Washington, D.C. after a Memorial Day weekend visit and my admission to practice before the United States Supreme Court.  My feet are still tired from walking 10 miles each day.

I arrived and after a brief nap went by Metro directly to Arlington National Cemetery.  I always go when in town and it was special to see each grave marker with a traditionally placed flag in the center of each.

I saw all the president's graves and viewed the changing of the guard in the Tomb of the Unknowns.  Today was more interesting than even the President's  wreath ceremony I watched on TV on Monday.  A local Boy Scout troop worked with the Guards to place a wreath honoring the dead at 4 pm.  These little guys really looked impressive.  The guards themselves always impress and inspire with the dedication placed to this activity.  Their heels click and they follow "present arms", "at ease", and follow in to form the next shift in such a precise and proud manner.

I also viewed the various new memorials since my last visit such as for the Astronauts killed in the explosion in 2003.  I viewed the amphitheater in all its pre-ceremony glory.  This was the first time I had seen the results of the recent renovation there at it is impressive.

Monday I planned my route across Washington to see all the main memorials except for the Vietnam Vets memorial which desired a day by itself.  I started by Metro from GWU/Foggy Bottom and walked to the Lincoln Memorial.  I only stayed a few minutes, but I always find this memorial so touching- the people really loved him- beard an all- and it shows.  His words carved in granite inspire with both the sincerity and quiet passion he held- the things he said in such an economical manner are truly amazing and the candidates running today should take the words at heart, particularly from the Gettysburg address meant to heal a divided nation.

Onward I walked to the National Mall and to a visit of the Korean War Memorial.  I am so happy that the repairs needed since I last visited have been made- the figures of soldiers are so lifelike that it gets me in my heart yet today- the horrors of war and the sacrifices made by so many.  i spent a long time sitting near the waterfall and contemplating the message given: "Freedom is not free."

Next I wound down to the World War II Memorial.  I saw the memorial for the first time and I was much impressed- I had thought (as had many) that the Mall and the reflecting pond would be ruined by placement of this large memorial in the way.  I was proven wrong- it is an impressive and yet respectful site with full display of the grand scheme of a war front on multiple fronts.  Each state has its own section and some of them were decorated this day with a full picture and list of accomplishments of the dead who gave their life for freedom.  One for my home state- a soldier from St. Genevieve, MO was honored this way.  The fountains and columns form a majestic setting for the words of two presidents and the arrows marking principle battles held on each front.

From this site, I could hear the National Memorial Day Parade with the many bands and horses.  I went directly to Constitution Avenue from the WWII site and watched from the shade of the many trees...

This was a very hot and humid day for someone living in San Diego- I walked down the parade route East toward the capitol- hiding beneath shade trees and watching a while as I did.  Near 14th Street one can see the White House in the distance with the lawn and fountains- an impressive site with such a large parade in the foreground for company! 

America the Beautiful and the various marches made for a great day and a great celebration.  I marched on and headed for the US Capitol.  Stopping at the Us Botanical Garden was a blessed relief- I was tired, hot, my feet hurt and I needed some relief.  Seeing all these exhibits about native plants was just the thing after a parade.

I next marched up the hill past the Capitol building a 30 degree hill that got longer the further I walked.

At the top, however I turned toward the Library of Congress buildings (Madison and Jefferson among others that will be the source of some of my latter research I am sure on the next visit) admiring the architecture and size of the buildings as I went North.

North it was as I walked towards my target- the United States Supreme Court building where I was due in the morning for my admission ceremony with the Federal Bar Association (see tomorrow's post).  I wanted to see the entrances so I would know for sure where to go on Tuesday.  I examined in detail the two gold doors with depictions of legal history and values.  I explored the disabled entrance that is also for Members of the Supreme Court Bar.  My goal made in 1999 was coming true- I would not go back inside the building until I was to be admitted.  I must admit I was not sure I ever would.

Enough for one day- my feet told me- I hit the Capitol South Metro Station and went back to the hotel to rest. 

More about the admittance ceremony and the opinions handed down that day in my Next post.

Memorial Day Remember the Heros

Memorial day is this Monday May 26, 2008.  I plan a long walk at Arlington National Cemetery and to watch one of the ceremonies there.  It was a joy to work for Veterans during my career in health care and nothing compares with the look of hope when we told them we could do what they asked.  Many are the sacrifices made by our heroes- being away from loved ones and home is very lonely.  We are blessed by the Veterans coming home from the wars that in earlier times could not be saved.

We should remember and give when we can- it is a long road back for those losing a limb (or many), suffering serious brain injury, or PTSD.

While it is true that our current military is composed of volunteers we should remember that they have dedicated their time to making our freedoms remain the envy of most other people (even our enemies!) in the world. 

At 3pm Taps will be played in the Memorial Day Parade in Washington, D.C. in remembrance.  Others are asked to observe a moment of silence.  I plan on being there and also giving a silent prayer at many of the memorials in Washington that weekend.

We often argue in politics about Veteran benefits such as the latest GI Bill for education being voted on and debated by the candidates.  Like most bills there will be the inevitable flaws overlooked during drafting.  Let us fix the ones we can and err, if at all, on the side of our service men and women who ask for little but fairness and the fulfillment of the promises we as a Nation have made to them.

I have long had the pledge as a lawyer to provide free services (where possible) to anyone who was a POW.  We all can do our part and will live the better for what for us is a much lesser sacrifice.