What is Hospital Care in a Section 1151 Claim?

Bartlett: What is “Hospital Care” in a 38 USC 1151 Claim?

Michael J. Bartlett v. Eric K. Shinseki, Opinion Number 08-4092, decided March 10, 2011 involves whether an injury occurred during “hospital care”.

The veteran was attacked by another patient while he was in a lock-down psychiatric ward and when he was standing in line in the hospital cafeteria. The attacker was considered dangerous by the hospital and was escorted by two hospital staff members.

The veteran alleged back and neck injuries and filed a claim under 38 USC 1151, which provides for compensations for VA fault in certain circumstances (VA negligence while providing hospital care, treatment or examination). The VA denied the claim because the veteran was not injured as a result of hospital care (his injuries did not arise as a result of the provision of care by the hospital and also because they were the result of a third-party attack that was merely coincidental to his hospitalization.

The Court framed the question as whether “hospital care” under section 1151 includes general supervision of patients in lock-down psychiatric wards or more specifically protecting a patient from a other patients known to be hostile.

The Court acknowledges that section 1151 requires fault on the part of the VA but found the veteran was claiming supervision of patients in a lock down psychiatric facility is hospital care and the negligent performance of that supervision caused his injury.

The Court defined hospital care as at a minimum including “the provision of services unique to the hospitalization of patients.” And says, “Although we will not further define “hospital care” or “patient” in the abstract, the determination as to whether a situation involves “hospital care” will depend on a variety of factors, including the nature of the services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms.” Id. at *7.

The Court found they had the “firm conviction” that in this case, the veteran’s injury involved hospital care because he was in a psychiatric lock-down facility where the VA staff controlled his movement and mandated his presence at the cafeteria and where the facility allegedly contained unstable and dangerous patients for whom the VA staff provided escorts. Id. at *8.

The Court also rejected the VA’s argument that all altercations or attacks caused by a third-party cannot be caused by “hospital care”. The Court “expressly reject the Secretary’s argument that Mangham broadly held that injuries due to third-party actions in all situations are intervening acts and per se not caused by hospital care, treatment, or examinations. The attack in Mangham occurred in the cafeteria of a domiciliary facility and involved no medically related supervision of the veterans present at the time of the accident”. Id. at *9.

The Court also rejected the VA’s argument that the Federal Tort Claims Act served as a remedy and precluded section 1151 benefits.

This case serves as an important expansion of section 1151 benefits. It might also serve as the legal foundation for further expansions where the VA is not properly supervising third-party actors who have a history of aggression.

Decided by CJ Kasold and Judges Moorman and Davis.