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  • Writer's pictureDavid N. Damick


When her veteran husband underwent surgery to remove part of his intestine, Mary (not her real name) stayed by his side. She sat in a chair by his bedside, watching over him, when the other patient in the room came from behind the curtain separating the beds and attacked her. The assailant pulled off her clothes as she screamed and climbed over her husband’s bed to escape, while her husband could do nothing to help. The attacker acted completely delusional, and it took several male nurses and security guards to eventually stop and restrain him.

Although the attacker was criminally charged, Mary watched in federal court as the VA’s attorneys consented to his defense that he did not mean to attack her but was delusional due to the amount of pain medication he was given. The US Attorney office did not object to the two defense psychological reports, and the attacker was let go. That was not at all the VA’s position when Mary went to court for the harm caused to her.

In the two years that our office represented Mary, the VA denied that there was any problem with the pain medication, even though the attacker had had a prior delusional episode a year before on the same medication. The VA’s position was that there was no way anyone could have anticipated a sexual assault, and they firmly asserted that all the medications were strictly given in accord with proper orders and in proper amounts. A difficult case. . . except for one thing. . .

For those two years, the VA claimed they could not find the record of the machine that delivered the pain medication to the attacker. The nurses who cared for the attacker (as a patient before he was the attacker) swore in testimony that he showed zero signs of confusion or mental problem, right up to the attack. That the patient was on what they call a “PCA” pump, (personal controlled analgesic) where the caregivers load the pain medication into the pump and set it so that the patient can ask for medication only when they need it, but cannot get more than the doctor allows in a given time. The nurses also gave sworn testimony that the machine was set and checked by them and there was no indication that their patient had any problem with pain or the PCA machine.

ONE WEEK before trial, in response to a trial motion by our office, all of a sudden the five pages of pain medication records showed up. It was earth shaking. I, David, was hiking in the hills of Texas with my daughter, when one of our paralegals, Kim, received the records and immediately emailed them with an emergency call. It took her one glance to see that the attacker had been grossly overdosed, and the PCA machine had been completely improperly set. The patient who became delusional and attacked Mary had been given more than two times the doctor’s prescription because the nurses did not know how to calculate different measurement standards. More extreme was the finding that the attacker had gone from requesting about 14 doses a session, to over 120, and the machine was giving him way over what was supposed to be the limit. The “smoking gun” was revealed but with no time to act before trial. We did act and found a highly qualified expert to provide an opinion over the Memorial Day weekend.

Fortunately, the judge read our motions for sanctions, and understood the situation entirely. The case resolved where it should have done. Unfortunately, our client had to endure the two unnecessary years of litigation and dismissive behavior by the VA to get it done.

Sexual assault is a real problem in VA facilities. There were national studies on this problem. Overwhelmed by other problems, it does not appear the VA has done much to resolve the issue. Hiding or “not finding” records is another real problem with VA facilities. This could be solved by honesty and paying attention. But it is not being solved, so we look into the dark corners.

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