Schertz: Section 1151 Claims, the Standard for Disclosure

Gene R. Schertz v. Eric K. Shinseki, Opinion Number 11-2694, decided September 26, 2013 involves a Section 1151 (medical malpractice) case and the question of what is the standard for disclosure of medical risks.

The veteran had a bifemoral bypass graft surgery at a VA Medical Center.  Prior to surgery he signed an informed consent form which included a reference to possibly permanent spinal cord damage.  His wife also admitted a physician informed them of a very slight risk of paralysis that was “played … down”.

After the surgery, the veteran could walk but within 5 days had lost the ability to move his legs and was diagnosed with a spinal cord infarction.  As a result, he filed a claim for compensation under 38 U.S.C. § 1151.  The director of the VAMC spinal cord rehabilitation program opined that the loss of blood flow to the spinal cord is a common but not wholly predicable outcome, and that “this situation is not a routinely anticipated consequence of the vascular disease process, and he should be considered for service-connected benefits.”

On remand, the Board asked for an examiner to state whether the risk of spinal cord infarction was the type of risk a reasonable medical provider would have disclosed.  The chief of surgery stated paralysis as a result of the aortobifemoral graft “is an infrequent complication of less than 1% and is not emphasized prior to the operative procedure.  The complication would have been foreseen; however, it would not normally be discussed in the preoperative discussion because of its low frequency.”

The Board denied compensation saying the VA physician did not commit negligence or a similar instance of fault and the spinal cord impairment and paralysis were reasonably foreseeable complications.

Importantly, 38 CFR § 3.361 states regarding to foreseeability that “The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk”.

The veteran argued it was immaterial whether his surgeon “actually” considered the possibility of paralysis and told him about it, but the proper question is whether it is “reasonably foreseeable” as defined by 38 CFR § 3.361.  He relies on the statement by the chief of surgery to say that a reasonable health care provider would not have disclosed the risk of paralysis.

The Court determined that the term “not reasonably foreseeable” is susceptible to multiple interpretations and that the VA’s interpretation found in 38 CFR § 3.361 is permissible.  The Court then states this is an objective standard of the reasonable health care provider and that the actual foreseeability of an event by a treating physician is not dispositive.  Id. at *8. 

The Court remanded the case for a consideration of the objective standard.  However, they did state the scope of the consent actually provided could be evidence if the physician acted in a manner consistent with how a reasonable provider would have acted.

Decided by Chief Judge Kasold, and Judges Pietsch and Greenberg.