Monday, June 30, 2008

VCS v. Nicholson: Trial notes problems but fails plaintiffs

From Army Times:
June 27, 2008 - A judge determined Wednesday that he does not have the jurisdiction to change the way the Veterans Affairs Department cares for returning service members in a lawsuit Veterans for Common Sense filed against VA Secretary James Peake.

"The grievances are misdirected," Judge Samuel Conti wrote in his decision for the U.S. District Court, Northern District of California. "The remedies to the problems, deficiencies, delays and inadequacies complained of are not within the jurisdiction of this court."

But though he found for the defendants, the judge laid out in an 82-page decision many problems he identified within VA from three weeks of testimony. Veterans for Common Sense complained that VA needs better oversight to ensure programs are in place and well-run, and that delays and gaps in mental-health care have led to problems for Iraq and Afghanistan veterans, including lost jobs, ruined relationships, homelessness, accidental overdoses in VA facilities and suicide while under VA care.

Conti said the plaintiffs "have demonstrated that their members have suffered injuries in fact."

"Given the dire consequences many of these veterans face without timely receipt of benefits or prompt treatment for medical conditions, especially depression and [post-traumatic stress disorder], these injuries are anything but conjectural or hypothetical," Conti wrote. As VA concedes, he wrote, "delays in health care, especially for mental health issues, and delays in receipt of disability benefits, which are often the primary or sole source of income for a veteran, can lead to exactly the type of injuries complained of" by Veterans for Common Sense.

In fact, he said, the actions sought by Veterans for Common Sense, including a time limit on how long an appeal can take, would likely improve the situation.

"This issue ... is whether this and other relief sought by [Veterans for Common Sense] are within the power of the court to grant," Conti wrote. "The Court finds that [Veterans for Common Sense's] individual members would have standing to sue."

The trial brought to light an e-mail showing 1,000 veterans a month attempt suicide while under VA care — written by VA's top mental health doctor with the subject line, "Shh!" It caused a VA employee to forward an e-mail sent to mental health staff at a Temple, Texas, VA facility requesting that mental health workers diagnose adjustment disorder before PTSD because they didn't have the resources to deal with PTSD. And it showed that delays in medical appointments, which VA claimed were 30 days, were actually much longer.

But Veterans for Common Sense had to prove the problems were systemic — that they affected every veteran. Instead, they showed that many of the problems affected a lot of veterans, but not all of them.

Though Veterans for Common Sense intends to appeal the decision, Paul Sullivan, executive director of the organization, said they "stand willing to work with Congress and VA to resolve the many serious problems the court confirmed."

-"June 27, Lawsuit Update: Judge - VA Care Falls Outside His Authority" by Kelly Kennedy


1 comment:

bob handy said...

Recently Federal District Judge Samuel Conti decided in the class action lawsuit in which we (Veterans United For Truth and Veterans for Common Sense) were plaintiffs, that the Department of Veterans Affairs (DVA) was failing in many cases in providing mental health services to returning veterans. Unfortunately he also decided that he did not have jurisdiction at his level to compel changes in the DVA’s procedures.

While we are disappointed with Judge Conti's decision that he lacked jurisdiction, and do not agree that we did not prove the “systemic” nature of these problems, this outcome is far from being all bad. We knew that it was a crap shoot going in, but we were sure that he had the necessary jurisdiction. We also knew that no matter how he decided, the case would most likely end up before the Supreme Court. Of course we had hoped to be defending Judge Conti's decision against an appeal by the DVA; now we will be appealing his decision in the Ninth Circuit.

When we started out, we knew that we were in it for the long haul. We won round one, just by getting the case heard in federal court, since the DVA and the Department of Justice both attempted multiple times to have us disqualified as plaintiffs, and denied that the federal court had any right even to examine DVA procedures and policies..

We lost part of round two. It may be a setback, but it succeeded in large part since Judge Conti’s ruling expressed agreement with much of our complaint. Additionally The DVA has been exposed not only to the Congress, but also to the national and international media, who have stepped up their reporting on the shoddy treatment that the VA has been providing to returning veterans, and to the repeated delay and denial of service by the DVA..

Americas veterans will be forever in the debt of Morrison & Foerster, LLP and Disability Rights Advocates, the two law firms that took on the DVA pro bono.

Bob Handy, HMC USN (Ret)
Chair, Veterans United For Truth. Inc
PO Box 4476
Santa Barbara Ca 93140

805 455 5259 cell