As I mentioned several days ago, spotting a reversal at the Court is always a good yarn to read. Edna C. Spencer’s reads like a professionally written novel. This crusty old lady is nothing if not thorough in pursuing this. That she did it all by herself is nothing short of a miracle.
Edna’s husband, Fred A. Spencer was a Vet of three wars-WW2, Korea and Vietnam. I’m sure he saw more than he wanted to over all those years. Old Fred got the dementia and old timer’s disease in 95. Edna had to institutionalize him in 99 and by 2000, he was in the dementia unit in Biloxi, Mississippi. When they admitted him-right from the get-go- they noted he was “high fall risk” and that was it. Noted. No effort was made to put up the side rails, install a fallmeter or pad the slab concrete floor. These are all the things you’d do in your own home but not, of course, in a VA hospital that deals with these eventualities every day.
July came and Fred was falling frequently. VA “noted it” frequently. No effort was made to rectify it, though. Finally he was transferred to Kessler AFB’s hospital for a neurological workup because all these falls were beginning to affect him like Humpty Dumpty. By July 21st, things were out of control. Fred refused intervention (like he knew what was going on, right?) and fall protection was finally implemented. Unfortunately all those fall created a few small subdural hematomas that began to grow into big ones.
Fred set sail on his new life’s adventures in August and Edna was fit to be tied. After repeatedly admonishing the VA bubbleheads to be mindful of his dementia and imbalance issues, she was now a widow.
In May of 2001, she filed for DIC using the §1151 defense that VA had, in essence murdered Fred by not protecting him and taking him to a doctor when the most serious fall happened in July 2000. Something weird happened and two, different death certificates were issued-one signed and one not- over a two week period. More about that later.
In February 2003, VA very predictably denied her claim and she filed a NOD. VA saw her NOD and raised her with a VHA opinion from one of their own doctors. He, of course, not wishing to lose his job, seconded the original denial and VA issued the SOC.
Based on this, the BVA denied in October 0f 2005. Edna strapped on her hiking shoes and headed out to 625 Indiana Ave. NW and filed a Notice of Appeal. Mind you, she was doing this all of her own accord with not so much as a raised finger of support from a VSO.
Almost a year later (September 2006) , the VASEC and Edna entered into a Joint Motion to Remand. They agreed, as did the Court, that the IMO from the doctor was defective and thus the Reasons and Bases for the denial were flawed. Instead of justice, Edna was headed over Niagra in a brand new barrel and she wasn’t any the wiser. All she knew was the cause and effect of taking Fred to a charnel house and watching him die.
Sure enough, this story could only get better. VA hired a newbie to do the next IMO. None other than VA physician Tumkur S. Shivashankara, M.D was brought in to opine that:
…the immediate cause of Mr. Spencer’s death was “Aspiration pneumonia; [and] contributing causes [were]: 1) ischemic heart disease residuals of [coronary artery bypass graft] surgery; 2) Alzheimer’s dementia; [and] 3) chronic subdural hematoma[.]” Dr. Shivashankara opined that, based on a review of the intensive care unit notes from Keesler Air Force Base Medical Center, Mr. Spencer’s “falls were not as least as likely [as] not . . . contributed [sic] to the proximate cause of death.” R. at 274. Further, Dr. Shivashankara opined that “VA medical personnel[,] including VA night monitors or orderlies, nurses[,] and physicians[ were] not as least as likely as not negligent in [Mr. Spencer’s] care[,]” that it is “not a[t] least as likely as not” that delays and noncompliance with doctor’s orders, alleged by Mrs. Spencer, contributed to Mr. Spencer’s death, and that “the alleged delays and noncompliance . . . [are] not [at] least as likely as not reflect[ive of] carelessness, negligence, lack of proper skill, error in judgment[,] or similar instance of fault on the part of VA.”
The ink on Dr. Shivashankara’s green card wasn’t even dry, his command of English was suspect and here he was opining at great length on Fred’s demise. It wouldn’t surprise me if the good doctor’s field of expertise was gynecology. That would be in keeping with VA’s assignment of IMOs. But this was barely beginning in VA time.
That same day, a VA report of contact was prepared by VA employee “D. Sisk,” indicating that Dr. Shivashankava’s opinion was not satisfactory and reporting the opinion of “Dr. David Bass, who is the “Geriatric and Extended Care Manager” for the VA South Central Health Care Network. According to that VA report of contact, Dr. Bass stated that, “based upon what he had been told, he felt that there was a ‘lack of comprehensive documentation of some appropriate falls prevention interventions that could have lessened the risk of falling in July 2000.” Dr. Bass further provided examples of measures that could have been taken, such as “installing a bed monitor on Mr. Spencer’s bed, ensuring that both bed[ ]rails were in the up position at night, or[,] in extreme cases[,] [a] sitter can be assigned to monitor the patient.” Id. The VA report of contact also reported that Dr. Bass stated that a computed tomography scan “would be in order . . . even after a single fall in which a head injury is evident[,]” and that “it is always incumbent upon the treating physician to suspect a possible head injury especially in a dementia patient who might not be able to provide an accurate history of the fall.”
This really threw a wrinkle in the sheet. VA got Tumkur to write bunch more nexus letters all saying pretty much the same thing. Fred had had an out of body experience and never reattached his soul. Alternately, he had a bad chest cold that turned into bronchial pneumonia. Or maybe he was just getting old and this was an inevitable part of life-and death. One thing was for sure-falling down and getting brain owies was not the cause. The RO denied yet again in July of 2008 and Edna hopped back onto the hamster wheel for another trip to the BVA in DC.
The Board made quick work of this and had a denial out by August. Edna once again headed back to the Court and they remanded yet again for a new IMO. VA decided to get someone with a Christian sounding name this time in hopes it would have a more aromatic cache. Dr. Marc Fisher was the new protagonist purchased by VA for this outing. He brushed up Tumker’s nexus and added a few mumbles of his own. Though he was part of the neurology department at the University of Massachusetts Memorial Medical Center, that in no way, shape or form meant that his specialty was neurology. He could have been a consulting proctologist and VA wasn’t illuminating it one bit.
Here’s where VA overplayed their hand. Dr. Fisher went so far as to say the brain owies from all those falls probably had a lot to do with why old Fred was on number 2 cello in his new gig with the celestial choir but that the death was not due to a lack of care or improper medical procedures. Dumb, Dr. Fisher. Very dumb. You told the truth but you didn’t say it in VAspeak. Twelve years of obfuscation, double-dealing, buying off doctors, hiring new ones and buying them off, ignoring the evidence and finally outright lies had come to a head:
In light of those facts, on February 28, 2013, the Court issued an order that remanded Mrs. Spencer’s case for the limited purpose of having the Board make a factual determination as to whether the failure of VA medical personnel to use bed rails or side rails during Mr. Spencer’s inpatient treatment rises to the level of “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care.” 38 U.S.C. § 1151. On March 14, 2013, the Board issued a supplemental decision in response to the Court’s order. In that decision, the Board made the following factual findings:
1. VA medical personnel at the Biloxi/Gulfport VA Medical Center . . . failed to use standard technological interventions for fall prevention (i.e. bed rails/side rails, bed alarms, or fall mats) following [Mr. Spencer’s] first documented fall at the facility in June 2000.
2. VA failed to exercise the degree of care that would be expected of a reasonable health care provider.
The Court read this and promptly reversed the denial. The VASEC threw his hands up and exclaimed. “What gives? I can’t even suborn false testimony without getting my teeth kicked in.” The BVA judge must have been shaken to his core. There went the 2013 bonus. As for the folks at the RO who began this nefarious denial back in 2001? Why, they lived happily ever after (in denial) and spent their summers in Orlando brushing up on their karaoke technique.
So if you think the this whole VA claims gig is over your head and out of your league, just remember Edna C. Spencer, an eighty year old plus woman with no legal training, took on VASECS Gober, Principi, Nicholson, Mansfield , Peake and Shinseki and kicked their asses. She may not live very long to enjoy her newfound DIC but she sure earned it. Thank you Edna for showing us that God sends the Right.
Edna’s most excellent adventures are chronicled here