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Navy veteran's family says VA kept mum about heart laceration

Bert Zellers, 81, of St. Petersburg says doctors at the James A. Haley VA Medical Center in Tampa lacerated his heart during a bypass procedure in 2006, but failed to tell him. He blames his current poor health on the mistake in the operating room.

CHERIE DIEZ | Times

Bert Zellers, 81, of St. Petersburg says doctors at the James A. Haley VA Medical Center in Tampa lacerated his heart during a bypass procedure in 2006, but failed to tell him. He blames his current poor health on the mistake in the operating room.

TAMPA

Navy veteran Bert Zellers went into heart bypass surgery in 2006 at the James A. Haley VA Medical Center a vibrant man who enjoyed the piano and entertaining friends at home.

He left four months later near death from what his family said was a hideous mistake during surgery — doctors lacerated his heart.

It's a mistake the VA, which denies wrongdoing, tried to hide, never informing them of what happened in the operating room, the family said.

So began Zellers' journey into what some consider the abyss of the Department of Veterans Affairs administrative tort claims procedure. It's designed to avert litigation, but critics say the VA too often refuses to either investigate or settle legitimate claims or doesn't respond at all.

And that can force infirm and elderly veterans into stressful litigation.

Zellers, 81, of St. Petersburg saw his first tort claim summarily denied by the VA, which said its doctors did nothing improper. His attorney filed a request for reconsideration, hoping to get VA headquarters in Washington to reverse the decision by VA officials in Florida.

That was May 2008. Zellers still awaits a response.

"When they ignore it, it's not only frustrating but it's demeaning to the veteran," said Texas attorney Michael Archuleta, who represents Zellers and handles VA tort claims across the nation. "They're suppose to settle meritorious claims. But that rarely happens."

Zellers is free to sue if his claim is denied or after six months without a response. But Archuleta said that is often impossible because veterans are so ill, they wouldn't survive litigation.

Given the expense of litigation, the family said, a lawsuit is unlikely.

Carolyn Clark, a spokeswoman at Haley, said the hospital — one of the busiest veterans hospitals in the nation — could not talk about any aspect of Zellers' treatment or tort claim.

A VA spokesman in Washington did not return calls to speak about national policy on tort claims.

Jerry Manar, who worked for the VA for 30 years until 2004 and spent time at an adjudication office that handled tort claims, acknowledged the VA does not always respond.

"I think it is unfair to the veteran," said Manar, who now works in Washington as the deputy director of veterans service for Veterans of Foreign Wars. "They deserve at least a competent administrative review of their case."

But he said some VA offices are simply overworked, and lawyers don't always have the time. While that is unfortunate, Manar said, it isn't intentional, even if veterans may think the VA is ignoring them to protect its financial interests.

"I wouldn't ascribe that kind of malice to the VA," Manar said.

Ira Leesfield, an attorney in Miami who handles VA tort claims, said the VA will settle cases where its liability and negligence are clear. But claims often languish without a response, he said.

"I am an optimist," Leesfield said. "Since we're dealing with veterans, people who made a sacrifice for our country, I like to think they will be treated fairly and have a fair look taken at their claim. But it's the government. And there is a process."

Zellers, a retired barber and restaurant owner, entered Haley on Jan. 10, 2006, for heart surgery because the procedure isn't perform by doctors at his own VA hospital, Bay Pines in St. Petersburg.

During surgery, things went terribly wrong, Zellers' attorney said. He went into cardiac arrest, barely surviving. The family said doctors told them there had been difficulties in surgery, which isn't unusual for someone of Zellers' age. He also has diabetes.

But the family said nobody told them specifically that his heart had been accidentally lacerated, which caused internal bleeding.

They said doctors also severely burned Zellers' back through an improper grounding of medical equipment, a wound for which Zellers said he still receives treatment.

In the days and weeks after his surgery, Zellers' condition did not significantly improve, his family said. Lynn Zellers, his daughter, said she repeatedly questioned her father's doctors about the lack of improvement.

At no time, she said, did the VA inform them of the specific complications.

Zellers was transferred from Haley to Bay Pines on May 4. He spent another four weeks at Bay Pines.

His daughter made copies of many of his medical files, which were eventually reviewed by a cardiologist who doesn't work for the VA. The VA often requires an expert opinion before settling a claim. The cardiologist was that expert.

Only then did the family learn about the lacerated heart, the family said. The cardiologist said Zellers' care deviated from the accepted standards.

"No veteran should go through what my father went through," Lynn Zellers said.

Bert Zellers said his treatment at Haley changed his life. He is weak and in pain, Zellers said. He and his attorney blame his poor health on mistakes made in the operating room.

"They really screwed up big time," Zellers said.

Archuleta said he doesn't think the VA investigated Zellers' claim as it is required to do by law. And the VA did not return calls to explain what work it completed.

"He served his country," the attorney said. "He went to a VA hospital. He was harmed. Then he did what Congress says he is suppose to do when he suffered damage. He filed a tort claim. And the VA ignored him. Now his claim is a paperweight on somebody's desk."

William R. Levesque can be reached at levesque@sptimes.com or (813) 269-5306.

Navy veteran's family says VA kept mum about heart laceration 07/20/09 [Last modified: Thursday, July 23, 2009 6:16pm]

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