Harvard Law Professor: Suing the VA Is Full of Challenges

Tuesday, 27 May 2014 04:24 PM

By Courtney Coren

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Those affected by the scandal at Veterans Affairs hospitals across the country could file a class action lawsuit, but such a move also presents "some challenges," says I. Glenn Cohen, Harvard University Law School professor and medical ethics expert.

"The main vehicle for bringing a lawsuit here is a statute known as the Federal Torts Claims Act. This is a general statute by which the government waives its immunity when you try to sue it for the action of a federal official or a federal department, so that is the lawsuit they would have to bring," Cohen told John Bachman and Francesca Page on "America's Forum" on Newsmax TV Tuesday.

"The problem with bringing that lawsuit is before you bring it, you're required to go to the agency that's responsible — this case the VA — and basically present the claim administratively for them, and only once they either deny it or give you less than you ask for can you then initiate suit in the federal courts," Cohen said. 

"Only then it could go to federal court, and once in federal court, there are additional challenges to bring this as a class action," he added.

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If veterans or their loved ones want to seek legal redress, they have "a statute of limitations of two years, so they can't take too long."

Cohen explained that the downside to Federal Torts Claims Act lawsuits is that plaintiffs "can only get a maximum of 25 percent" of their attorney's fees covered, and it may be difficult to find attorneys "who are interested in pursing this" on the VA victims' behalf.

He also said that filing a lawsuit against the VA may not make much of difference in terms of "improving the quality of care."

Cohen contends that the political pressure VA officials are feeling right now will have the greatest effect.

"They are very responsive to these political pressures, and my guess is, in terms of changing the behavior and changing the VA protocol, they're much more likely to come first from the political process," he added.

According to allegations, secret wait lists were kept at several VA hospitals throughout the country to make it look like patients were not waiting more than the required 14-day period, while in some cases they were actually waiting for months. At the VA hospital in Phoenix, Arizona, 40 patients allegedly died while waiting to see a doctor.

President Barack Obama appointed White House deputy chief of staff Rob Nabors to oversee a review of the policies in place for patient safety and scheduling at the Department of Veterans Affairs.

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