Section 1151 - Staph Infection: The VA cannot Hide Behind the Quality Assurance Program

Section 1151 – Staph Infection

Hiding behind the Quality Assurance Program

The case of Werner G. Hood v. Eric K. Shinseki, Opinion Number 07-2564, decided November 25, 2009, remanded a claim for compensation pursuant to 38 U.S.C. § 1151 which related residuals from a staph infection.

The veteran underwent bypass surgery at the VA Medical Center in Charleston, South Carolina and subsequently had to undergo another procedure to remove a staph infection near his surgical wound. The veteran reported that other bypass surgery patients also developed staph infection within days of his surgery and reported that he had been told that bacteria had been discovered in the ICU.

The veteran filed a claim for disabilities that began with the staph infection and the Regional Office denied the claim. The Board of Veteran Appeals remanded the case and required the VA under its duty to assist to attempt to determine if in fact hospital staff had reported to patients the presence of staphylococcus aureus. The Charleston VAMC refused to forward an existing report to the VA Appeals Management Center claiming statutes and regulations permit the release of a quality assurance review.

In lieu of the report, the VA sought an expert medical opinion that reported that it was impossible to know if the fact that multiple people developed a staph infection was a statistical aberration or a result of negligence.

Upon appeal, the veteran argued that (1) the Board erred by issuing a decision without the existing report conducted by the Charleston VAMC or (2) that the Court should make an in camera review of the report.

The Court rejected the possibility of an in camera review as its jurisdiction only includes that information that is part of the record before the Board of Veteran Appeals at the time of its decision.

Regarding the first issue, the Court determined that merely failing to obtain the report did not necessarily create a Stegall violation. The Court stated, “if the expert opinion that the Board relied upon in this case is sufficient to address the question of VA negligence, then the Board has substantially complied with its own remand order”. However, the Court determined the relied upon expert medical opinion was at best equivocal about negligence and as a result the case had to be remanded.

Then, recognizing the evidentiary development problems with the case, the Court went further and addressed the undisclosed report. The Court explained that Congress mandated a quality assurance program to monitor and evaluate VA health care. These documents might be confidential and privileged except for certain exceptions. The “might” be confidential distinction is based upon the fact that the facility director must in advance and in writing describe those quality assurance activities and the results thereof as privileged and confidential. Importantly, in this case, the veteran claimed that the undisclosed report was not described in advance and in writing as a part of the quality assurance program.

The Court seized on the apparent failure to label in advance and in writing the report a part of the quality assurance program to require upon remand that the BVA address this issue. The Court then also more fundamentally considered an exception to the privileged natured of any quality assurance work product which allowed its use within the VA. The Court noted that the BVA was a subset of the VA and, therefore, questioned why that alone did not justify the BVA looking at the report.

The result is that a veteran can now easily argue that the BVA cannot avoid looking at data resulting from a quality assurance program.

Decided by Chief Judge Greene, and Lance and Schoelen, Judges.