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Federal judge to decide whether Maine veterans can sue VA over substandard care

Six Maine veterans are suing the U.S. Government for medical malpractice, after they say a podiatrist at Togus Veteran's Hospital practiced negligent foot and ankle care.

AUGUSTA (WGME) -- Six Maine veterans are suing the U.S. Government for medical malpractice, after they say a podiatrist at Togus Veteran's Hospital practiced negligent foot and ankle care.

Whether the lawsuits move forward hinges in part on this question: Did the U.S. Department of Veteran's Affairs fraudulently conceal it? That's now up to a judge to decide.

"They very much trusted that they would get good care at the VA," said David Lipman, an attorney representing two of the veterans.

One of Lipman's clients is April Wood, a U.S. Army veteran who was honorably discharged after injuring her ankle in a training exercise.

Court records show a doctor at Togus Veterans Hospital in Augusta performed surgeries on Wood in 2006 and 2009, but Lipman said her injuries only got worse after the surgeries, and she eventually elected to have her leg amputated.

"She's a woman in her forties," said Lipman. "The pain was so bad she could not endure it. She was living in a wheelchair. She lost her leg and she will have no leg for the rest of her life."

According to court documents, officials at the VA told Wood in 2013 that her original surgeon provided negligent care. That doctor was suspended and then resigned in 2010.

"Unknown to them, in 2010, the VA here in Augusta, Togus, became suspicious," Lipman said.

According to a brief filed in court, the VA reviewed 431 of that doctor's surgical cases, and by 2012, concluded that more than half of patients were at risk of potential or actual harm.

"This is not something that just involves a few people," Lipman said. "It was a massive problem."

Wood first filed an administrative claim seeking compensation from the VA, but it was denied.

Curt Cashour, press secretary for the VA, said "In reviewing each claim, VA conducted a thorough investigation of each claim, including expert medical opinions, in order to determine if the care provided was sub-standard or caused injury. When that was the case, VA took steps to settle. Where there was no clear-cut evidence of substandard care, VA denied the claim."

Now, Wood, and five other veterans with similar stories, have filed lawsuits against the government.

Under Maine statute, the lawsuit has to be filed within three years of the medical procedure, so the statute of limitations is up. However, Lipman said there is an exception if the veterans can prove one of two things.

"Whether they fraudulently concealed it or whether there's a special relationship between the VA and its patients and they had a duty to tell the patients," Lipman said.

Cashour said they expect the court to rule on that question shortly, and they have made changes "to hold employees accountable and to be transparent with our findings and actions."

"The defense that they're giving is that they were negligent and incompetent, not deliberate," said Lipman.

Oral arguments are scheduled for October 25, with the judge's decision to follow. If dismissed, Lipman said the plaintiffs will appeal to first circuit. He said this is a case that could end up in front of the U.S. Supreme Court.

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