VA Health Care:

VA Uses Medical Injury Tort Claims Data to Assess Veterans' Care, but Should Take Action to Ensure That These Data Are Complete

GAO-12-6R: Published: Oct 28, 2011. Publicly Released: Oct 28, 2011.

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The Department of Veterans Affairs (VA) operates one of the largest health care delivery systems in the nation--providing health care services to more than 5 million veterans each year in over 1,000 facilities. These health care services are delivered by physicians, nurses, and other types of practitioners and range from routine examinations to complex surgical procedures. As in any health care setting, veterans receiving health care services at VA facilities may be at risk of incurring medical injury as a result of substandard care. Recent incidents have heightened concern about the quality of care provided to veterans by VA facilities. For example, in 2010 we reported that one VA facility discovered in 2009 that medical equipment had been improperly cleaned, thus posing safety risks to 2,526 veterans. In the event that an injury occurs as a result of care rendered by a VA practitioner, a veteran alleging medical malpractice may seek compensation by filing a tort claim with one of VA's 22 regional counsel offices. The offices, which operate under VA's Office of General Counsel (OGC), are responsible for initially investigating and, to the extent possible, resolving the tort claims through administrative review. After undergoing administrative review, claims may proceed to litigation in federal court, in which the Department of Justice (DOJ) defends the United States. During either VA's administrative review or litigation, the government may resolve tort claims by making payments to veterans. When such payments are made to veterans, VA's Office of Medical-Legal Affairs (OMLA) uses medical information from these paid tort claims, as well as related medical records and other relevant information, to assess the quality of care provided to veterans. In 1995, we reported that data on tort claims provided opportunities for VA to identify concerns with individual providers and decrease the risk of future tort claims. Specifically, we recommended that VA use available data on tort claims to help identify problem-prone areas in VA's delivery of care and initiate programs that could help prevent the types of incidents that generate tort claims for medical injuries. VA generally concurred with our 1995 recommendation and implemented a process to analyze and use available tort claims data to assess the quality of veterans' care. In light of recent concerns about the quality of veterans' care provided in some VA facilities, Congress asked us to examine the resolution of tort claims filed against VA in the context of VA's efforts to improve the quality of veterans' care at its facilities. In this report, we (1) describe the number of tort claims that were resolved through VA's administrative review and through litigation from fiscal years 2005 through 2010 and (2) examine how OMLA uses paid tort claims data to assess the quality of veterans' care.

From fiscal years 2005 to 2010, the number of tort claims filed against VA rose by 33 percent, from 1,251 to 1,670. Most tort claims filed against VA in fiscal years 2005 through 2010 were resolved through VA's administrative review, rather than through litigation. Specifically, VA resolved more than 80 percent of tort claims through administrative review during this 6-year period, and the remainder were resolved through litigation. Additionally, the amount paid for tort claims during fiscal years 2005 through 2010 was lower for claims resolved through administrative review than for claims resolved through litigation. For example, in fiscal year 2010, about $30 million was paid for the 277 tort claims that were resolved through VA's administrative review, while about $49 million was paid for the 114 claims that were resolved through litigation. Further, in fiscal year 2010 the average number of days to resolve tort claims administratively was considerably less than the average number of days it took to resolve claims through litigation. VA policy requires OMLA to review tort claims that result in payments to veterans in order to determine whether VA practitioners provided substandard care. For each medical injury-related tort claim paid, OMLA is required to collect medical records related to the incident that prompted the claim and convene a review panel of medical practitioners to determine whether the claim was associated with substandard care. If the panel determines that a practitioner rendered substandard care, OMLA notifies the director of the VAMC involved in the claim of the panel's conclusion and the director must report the practitioner to the National Practitioner Data Bank (NPDB). VAMCs and VA networks utilize NPDB data in overseeing the practitioners who deliver services in their facilities. Although VA's regional counsel offices are required to notify OMLA about all paid tort claims to initiate OMLA's review of VA practitioners involved in the claims, we found that this notification does not always occur because VA lacks an internal control to help ensure that regional counsel offices comply with this requirement. Specifically, we found that the regional counsel offices did not report to OMLA 16 percent of the total number of paid tort claims involving VA practitioners from fiscal years 2005 through 2010. VA OGC officials told us that this occurred for several reasons, such as lack of administrative oversight and staff turnover. As a result, OMLA did not have the opportunity to review all paid tort claims for this time period to determine whether VA practitioners associated with these claims rendered substandard care, thus limiting the number of practitioners who should have been reported to the NPDB. To help ensure the quality of care provided to veterans by VA practitioners, including that information about all paid tort claims is reported and used appropriately to improve patient care, we recommend that the Secretary of Veterans Affairs direct the General Counsel to take the following three actions: (1) Ensure that regional counsel offices notify OMLA about all paid tort claims resolved through VA's administrative review and through litigation. (2) Develop and implement an internal control process to verify the completeness of the notifications of paid tort claims that regional counsel offices provide to OMLA. (3) Review all paid tort claims related to medical injuries at VA facilities in prior years to ensure that all of these claims are reported to OMLA.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: VA concurred with the recommendation to ensure that regional counsel offices notify OMLA about all paid tort claims resolved through VA's administrative review and through litigation. VA provided documentation of multiple emails to the Regional Counsels to re-emphasize the need to notify OMLA about all paid tort claims resolved through VA's administrative review and through litigation. As of December 2012, VA had also modified its data system to include a date field for documenting the date the notice was sent to OMLA.

    Recommendation: To help ensure the quality of care provided to veterans by VA practitioners, including that information about all paid tort claims is reported and used appropriately to improve patient care, the Secretary of Veterans Affairs should direct the General Counsel to ensure that regional counsel offices notify OMLA about all paid tort claims resolved through VA's administrative review and through litigation.

    Agency Affected: Department of Veterans Affairs

  2. Status: Closed - Implemented

    Comments: VA concurred with the recommendation to develop and implement an internal control process to verify the completeness of the notifications of paid tort claims that regional counsel offices provide to the Office of Medical Legal Affairs (OMLA) and implemented a process in fiscal year 2012. Specifically, the Office of General Counsel (OGC) sends a monthly report of paid tort claims to OMLA. After reviewing the report, OMLA creates a listing of cases for which a notice has not been reviewed, notifies the Regional Counsels, and then verifies their compliance once the notices are received. VA officials indicated that some payments in 2011 were not reported to OMLA immediately due to a request made by the Department of Justice. These payments were related to pending claims and litigation where the Government's interests could be negatively affected by a concurrent National Practitioner Data Bank Proceeding. VA indicated that at the conclusion of the litigation, those payments would be reported and subsequently demonstrated that they had followed up on these particular payments to ensure that they would also be sent to OMLA.

    Recommendation: To help ensure the quality of care provided to veterans by VA practitioners, including that information about all paid tort claims is reported and used appropriately to improve patient care, the Secretary of Veterans Affairs should direct the General Counsel to develop and implement an internal control process to verify the completeness of the notifications of paid tort claims that regional counsel offices provide to OMLA.

    Agency Affected: Department of Veterans Affairs

  3. Status: Closed - Implemented

    Comments: VA concurred with the recommendation to review all paid tort claims related to medical injuries at VA facilities in prior years to ensure that all of these claims are reported to the Office of Medical-Legal Affairs (OMLA) and completed this review in January 2012. Specifically, the Office of General Counsel (OGC) reviewed its reports of paid tort claims in prior fiscal years and compared them against OMLA's records of cases it had opened for review. In those cases where it was determined that notice of payment had not been furnished to OMLA, OGC provided notices to OMLA.

    Recommendation: To help ensure the quality of care provided to veterans by VA practitioners, including that information about all paid tort claims is reported and used appropriately to improve patient care, the Secretary of Veterans Affairs should direct the General Counsel to review all paid tort claims related to medical injuries at VA facilities in prior years to ensure that all of these claims are reported to OMLA.

    Agency Affected: Department of Veterans Affairs

 

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