Judge awards $5.3 million to family of deceased VA patient

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A federal judge has awarded more than $5 million to the family of a woman who died of a brain aneurysm following repeated visits to the Veterans Affairs Medical Center in Altoona.

The bulk of the money is to cover the expenses for her disabled son's care, which she used to provide.

U.S. District Judge Kim R. Gibson of the Western District of Pennsylvania found that 70 percent of the damages were attributable to Scott D. Marlowe, a radiologist employed by the medical center, which means the government is ordered to pay nearly $4 million.

The other two doctors who saw Mary Ann Smith, Mohammad Dowlut and Robert Scott, worked for Annashae Corp., which had a contract to provide certain emergency services to the medical center. Cases against those doctors settled privately before Judge Gibson issued his opinion, which awarded damages under the Wrongful Death Act and the Survival Act.

"Ultimately, it was Marlowe's negligence that set in motion a chain of events that ensured that Smith never received the care she needed for her subarachnoid hemorrhage ... While Dowlut and Scott's negligence also contributed to Smith's death, both would have taken a different course of action had Marlowe properly reported the results of Smith's CT scan," Judge Gibson said in his 46-page decision in Smith v. United States.

Because Dr. Marlowe's reading of Smith's CT scan set the course for her treatment over the two weeks before she died, his employer -- the U.S. government -- is primarily responsible.

Judge Gibson split the remaining 30 percent of the liability between the other two doctors.

Because the claims were brought under the Federal Tort Claims Act against the government, they were heard in a bench trial rather than a jury trial.

Smith, who had served as an allergy and immunology specialist in the Air Force for nearly 10 years, had a son who was born in 1990 with "severe mental retardation, epilepsy, cerebral palsy, scoliosis, autism and optic nerve damage," Judge Gibson said. Until her death, Smith was her son's constant caretaker.

Victor Pribanic, of Pribanic & Pribanic in White Oak, who represented the son and his stepfather, Daniel Smith, presented to the court a life-care planner who estimated the annual cost for the son's care is now $84,760.

A life-care plan is typically presented in a case where the injured party will need medical attention, but, in this case, Mr. Pribanic used it to argue for lost services because Mary Ann Smith can no longer care for her son.

The son has been living at Holy Angels, a residential care facility in North Carolina, at no cost to him because Medicaid pays part of the tab. As a result, the government argued it has already paid the family through the Medicaid funds given to Holy Angels.

But Judge Gibson ordered the government to pay the family $3.7 million for past and future lost services, after having adopted the figures offered by the plaintiff's life-care planning experts.

The total amount of damages awarded was $5.3 million; the government is responsible for 70 percent.

Smith's is the latest case in which the government has faced a sizable verdict related to the VA. Recently, the government dropped an appeal of a $17.5 million verdict in an Eastern District case. In that case, Christopher Ellison suffered severe brain injury at the age of 49 after having a stroke following dental surgery at a VA medical center in Philadelphia.

"The decision not to pursue an appeal was made by the solicitor general of the United States and we are not at liberty to discuss his decision," said Thomas Johnson, of the U.S. Attorney's Office for the Eastern District of Pennsylvania, in a prepared statement last week. He had represented the government in that case, Ellison v. United States.

Jennifer Andrade, of the U.S. Attorney's Office in Pittsburgh, defended the government in Smith and declined to comment.

legalnews

Saranac Hale Spencer: sspencer@alm.com or 215-557-2449. To read more articles like this, visit www.thelegalintelligencer.com.


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