California VA Malpractice Attorney, Jeff Milman

Full Transcript: Free Advice Interview with Veterans Medical Malpractice Attorney Jeff Milman

The following is a transcript of an interview with California veterans medical malpractice attorney, Jeff Milman, conducted on May 8, 2007. Mr. Milman is currently a member of the Advocate Law Group Network, with over 25 years experience handling medical malpractice cases throughout the state of California and nationwide. Mr. Milman specializes in veteran’s negligence malpractice cases and has written and taught trial practice for lawyers for 25 years. He was president of the Orange County Trial Lawyer Association and was named Trial Lawyer of the Year last year. In this interview, Mr. Milman discusses the ins and outs of veterans malpractice claims.

Free Advice: I’m speaking today with Jeff Milman regarding veteran’s medical malpractice issues. Mr. Milman, can you tell us a little bit about your background first please?

Jeff Milman: I graduated law school in 1981. I’ve been doing medical negligence work since then. I’ve handled cases up and down the country in areas of veteran’s negligence malpractice. I was president of the Orange County Trial Lawyer Association and Trial Lawyer of the Year last year, and I’m a member of the American Board of Trial Etiquettes, an organization to which you are invited by your peers after having done a minimum of 20 jury trials. I’ve written and taught trial practice for lawyers for 25 or 26 years. I’m currently a partner in a law firm that specializes in veteran’s medical malpractice.

Free Advice: Thank you. Let’s get to the specifics on this topic. What exactly is veteran’s medical malpractice?

Jeff Milman: When you are a veteran, you have the right following active duty to be treated at a Veterans Administration facility depending on what state you live in. If you or a family member has been harmed by the VA through medical negligence, you have a malpractice case, as you would if you had suffered the same treatment at a private hospital. However, veteran’s malpractice has a whole different set of rules, regulations, and filing requirements. The system is federalized, and since you are suing the United States of America or making a claim against, it you have to operate by the king’s rules.

Free Advice: Can you distinguish for us the difference between military and veterans medical malpractice.

Jeff Milman: If you are active duty military, there is a doctrine called the feres doctrine, which prevents you from bringing a claim against the United States or the military if you are in service. The only benefit that a veteran has is to make a claim following active duty if they feel they have been harmed through medical negligence at the VA.

Free Advice: Can veterans only sue for medical malpractice, or would that option be available for active servicemen and women?

Jeff Milman: Once again, you can’t do it if you’re active. It’s only for people who are no longer active.

Free Advice: Do you have to have had an honorable discharge from the service to sue?

Jeff Milman: Good question. The answer is no. As long as you have the benefits, you can bring a claim against them just as any other veteran. However, VA benefits do depend in part on type of discharge.

Free Advice: What are the differences between malpractice that occurs at a veteran’s hospital and in a private hospital?

Jeff Milman: There really is no difference. There seems to be a tendency in the veteran’s cases of failure to provide timely testing, for example, long waits for MRIs and the like. These clients get lost in what is in essence is a large system, but if, for example, veteran goes in for an appendectomy and comes out without a leg there’s no difference if it happened at the VA as opposed to a private facility.

Free Advice: What should a person do if they feel they have been a victim of malpractice at a VA hospital?

Jeff Milman: The first thing they should try and do is acquire their hospital chart from the VA. This can be a daunting task at best. I’ve seen horrific cases where veterans try and try and try and just can’t seem to get their hands on their records. They should also write down a chronology of events, take whatever pictures and collect whatever evidence they feel may be appropriate. Finally, they should contact a good lawyer with expertise in this area of the law.

Free Advice: Do you have any suggestions to expedite what you just called the daunting process of trying to get medical records from the VA?

Jeff Milman: Unfortunately, no. Sometimes the VA will cooperate a little more if a veteran is lucky enough to know someone in the medical field and can arrange to have the records transmitted to a private practitioner such as a family friend who is a doctor. All I can say is that the squeaky wheel gets the grease. You need to be persistent. Go to the medical records center or have a relative do so and just keep pushing.

Free Advice: What shouldn’t a person do if they have been a victim of malpractice with the VA?

Jeff Milman: They shouldn’t put a lot of nasty things in writing. They shouldn’t meet with the claims administrators for the VA and let themselves give recorded statements. They shouldn’t rush off and start marching in front of the facility or contact the press. What they need to do is the three C’s – cool, calm and collected. They shouldn’t put anything in writing that may come back to haunt them, because federal cases come before a judge, not a jury.

Free Advice: These cases are tried in federal court then, not in a state court?

Jeff Milman: That’s correct. Unfortunately, similar to Kaiser cases, you are not permitted to air your grievances in front of a jury for VA malpractice. Since you are suing the United States of America or bringing a claim against them, you have to play by their rules. Whether you are in Nevada or in Maryland or in California, you are filing a federal court claim in the federal court system. All of the federal courts operate pretty much by the same rules, timing requirements, and discovery process. However, each different state has different laws pertaining to medical negligence. For example, if you are in California there’s a cap on damages where there may not be one in, for example, Nevada.

Free Advice: How would that cap apply to something that perhaps you prevailed in a federal court if you are from California?

Jeff Milman: Each federal court takes the substantive law of the case from the state you’re in. For example, if the negligence happens in California, the judge will be based in California and is required to follow state laws. Since 1975, California has had a very unfair law called MICRA on the books. That law limits somebody’s pain and suffering to $250,000.00 total. The figure has never been increased since 1975. There are other avenues of recovery but it’s very unfair to tell someone who is brain damaged or a loved one who suffered the death of a family member that the most they can ever get for the non-economic damages is $250,000.00.

Free Advice: So the state laws will apply to you for the state in which you were harmed by the Veterans Administration, but you’ll handle the claim in a federal court?

Jeff Milman: Correct.

Free Advice: Who defends the Veterans Hospital during that proceeding?

Jeff Milman: Within a two year time span from the date you knew or should have known of the medical negligence, you must file a rather specific claim with the Veterans Administration under the Federal Tort Claims Act. The VA then assigns its staff attorney to evaluate the case. Some cases do settle during that stage, but the majority don’t. After a six-month time frame, if there has been no outright denial, the veteran with their counsel is permitted to file a lawsuit in the federal court. At that point, the file is assigned to a United States Assistant Attorney, most who are very good at litigation and handle a variety of matters including land rights, immigration and of course defending the VA for medical negligence.

Free Advice: You just mentioned two time frames. You have two years from the time you knew or should have known of your claim?

Jeff Milman: Correct. You must file a Federal Tort Claim. The VA then has a six-month window to react to that. However, if you have not received either a settlement or an outright denial of the claim in a six-month time period, you are free to file suit.

Free Advice: Recently in the news, there have been several reports on poor conditions at Walter Reed Hospital. What happened at Walter Reed?

Jeff Milman: Walter Reed is endemic of the fact that the VA is a large system with a lot of people who are overworked and, some would argue, underpaid. Walter Reed issues had to do with horrific living conditions, which of course can translate into a medical negligence claim. For example, if you are a veteran seeking rehabilitation and nursing care and you’re in an environment like Walter Reed where there’s mold and non sterile conditions and develop asepsis or an infection, then you could bring such claims.

Free Advice: Are those types of incidents and conditions common at most of Veterans Administration Hospitals?

Jeff Milman: To be honest, no. Some of the facilities are very, very good. Some of the facilities are not. You’ve got to take them as you find them. Obviously, some of the older ones need some renovation. The newer ones don’t. It’s really a matter of case by case.

Free Advice: Would you say medical malpractice is more common at VA hospitals than in private hospitals? If so, why do you think that is?

Jeff Milman: I don’t think it’s more common. We prefer to use the term medical negligence. I think that the VA, like some of the large HMO’s, is just a large organization with a number of people. By virtue of sheer numbers, there seem to be more claims that come out of that area than a smaller hospital. Proportionately, there are probably more claims. It also has to do with something that is endemic to the system. The squeaky wheel gets the grease, and a lot of patients just don’t know how to be proactive and attend to their medical care. They rely on a system which often fails them.

Free Advice: Would you say there are specific types of medical negligence that you have seen at Veterans Hospitals?

Jeff Milman: Oh, I’ve seen a lot and I would say that each case is different. There can be surgical errors which really have nothing to do with the system itself, unless you’re dealing with a surgeon who hasn’t been policed by their own. More often than not, it’s lack of supplies. For example, we are doing a case right now where a veteran went in for an elective surgery and they didn’t have enough blood on supply for his particular blood type. He bled out during the surgery and went into cardiac arrest and now his heart muscle’s wiped out. That’s a typical example of the facility not storing the proper supplies for him.

I’ve seen other cases where veterans will wait for months and months and months to get a simple scan and MRI or CT. By the time they eventually get scanned what with the VA canceling appointments and what have you, they’ve got a serious problem that could have been averted. I’ve seen women with breast lumps who go into the VA whose mammograms keep getting cancelled, cancelled, cancelled and they wind up with a breast cancer.

Free Advice: Those types of waits and delays can be translated into negligence on the part of the VA?

Jeff Milman: Absolutely, if you can establish that there was a medical problem which should have been attended to and by virtue of the delay has become substantially worse. For example, in the breast cancer case I just mentioned, you have a case.

Free Advice: What types of documentation is required to show medical negligence by the VA?

Jeff Milman: The hospital chart would be the first place to look, because in any hospital, including the VA, you’ll have doctors’ orders, medication logs, nurses’ notes, consultant reports. That is one important part of the picture. The other important part is the veteran and their family and friends’ recollections of what happened. Sometimes what the chart says is not what truly happened. Finally, in any medical negligence case we need to secure good quality experts who are practitioners in that particular specialty, whether it be neurosurgery or economics, to put together damages and make sure that the veteran whose very life and family and case relies on us is well-represented.

Free Advice: How are the damages calculated in a medical negligence suit and what factors do you take into account?

Jeff Milman: Well, it depends upon the state. If there is a cap on damages like there is in California, then we know what the upper limit is for at least the non-economic pain and suffering. In California it’s $250,000.00 for the veteran’s pain and suffering. If their spouse has suffered damage to the marital relationship, for example he or she now has to cart somebody around in a wheelchair where before they were normally healthy, then they have a separate cap on damages. If it’s a state without a cap, then we look to other verdicts and we look to our experience as to what we think the federal judge might award.

Then on top of that there is the economic picture: any out-of-pocket medical expenses; any loss earnings the veterans may have; any expenses the veteran or their family may have incurred for other medical care. Then of course the big issue is what we call a life care plan. That’s when we project the future medical costs without outside providers to the federal court. For example, we may be able to demonstrate that it’s going to cost $800,000.00 for this veteran to get medical care over their lifetime at top-quality institutions other than the VA, and that is an item of damages.

Free Advice: You’ve mentioned caps on damages in California. Are there caps in all the other states as well?

Jeff Milman: Each state is different. Veterans should talk to a good, quality attorney about the particular state’s damages caps and laws.

Free Advice: What questions should the injured person ask a veteran’s medical malpractice lawyer before hiring the lawyer?

Jeff Milman: How long have you been practicing law? What expenses, if any, do I have to lay out? Most good medical malpractice lawyers will deal with the contingency fee which is allotted under the federal rules and front advances for their client. You would want to ask that lawyer how much of their practice is dedicated to VA malpractice and negligence work as opposed to other types of cases, such as auto cases or regular state medical malpractice. You might even want to ask if they’ve handled any other similar cases such as this. In the end, you have to go by your gut. An attorney could have a lot of good diplomas on the wall, but when the day is done this is the person who is going to be representing a very important aspect of your life in court and you want to make sure it’s somebody that the federal judge is going to respect.

Free Advice: Is there any type of specialized certification offered to practitioners who specialize in veteran’s medical malpractice?

Jeff Milman: Unfortunately, no. Anybody who does practice in a state can apply and be admitted into the federal court system and handle a major case as their first one with never having gone through the certification. The best I could hope for is that the practitioner is a member of the American Board of Trial Advocates, which is an organization which requires a minimum of twenty jury trials. When you deal in a VA case you’re dealing with a federal judge and you have no jury. If you have a good attorney, at least you have the hope that that person has been through a number of trials and has the experience.

Free Advice: If a potential plaintiff cannot find someone with whom they would be comfortable working in, say, Nevada, could they hire an attorney from California to handle that claim?

Jeff Milman: Oh, absolutely. I handle cases up and down the country and normally we will handle it if the case is of significant value. If it is not, we’ll make referrals. If , for example, we take a case in Maryland, I will contact a local attorney there and with the simple wave of a paper called a pro hoc viche application, I can travel to Maryland to handle that case with the local assistance of that attorney. It doesn’t cost the veteran anything more because the fees are strictly controlled.

Free Advice: This leads me to my last question. How exactly is an attorney in this type of case compensated?

Jeff Milman: In the federal system, the attorney shells out money for experts, and assuming those costs are reasonable, then the attorney is entitled to a maximum of 20% of the gross fees upon settlement. If the case gets into the litigation stage, meaning the filing of a suit, then the attorney would be entitled to a maximum of 25%.

Free Advice: Is there anything else you’d like to add for potential claimants who are seeking help with this kind of case?

Jeff Milman: I would just say make sure you find good legal representation. Be cool, calm and collected. Try and get the charts and you’ll do just fine.

Free Advice: Thank you so much for your time.

Jeff Milman: Thank you.