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Ruling for veteran’s widow a small, but meaningful, victory

Today is Veterans Day, and I would like to take this opportunity to gratefully thank each and every veteran for service to our country and for the sacrifices made on our behalf.

It is an important day for me personally since my father (Army, World War II), brother (Marines, Vietnam), brother-in-law (Navy, Vietnam), and husband (Air Force, Korea) all are veterans.

One of the more recent disturbing legal issues involving veterans focuses on their access to care and to the quality of care in VA hospitals. Not all veterans have experienced a lack of access to care or endured poor care in an inpatient setting or outpatient clinic. But even one veteran who has weathered such an occurrence is too many.

In reviewing the legal cases filed by veterans, I found one that was quite interesting. It resulted in a judgment in favor of a veteran’s widow and her husband’s estate.

In the case of Moyer v. United States of America (2013), Robert Moyer was a WWII veteran and was eligible for veteran benefits, including medical care through the Veterans Administration. He received some treatment at a Las Vegas VA hospital, but was referred or sent to another VA in Long Beach, Calif., where shortly after his operation, treatment and release, he died. The nature of his diagnosis and treatment were not revealed in the court’s order.

His widow, Shirley Moyer, then 76 years old, filed a lawsuit on behalf of herself and her deceased husband’s estate in the U.S. District Court in Nevada, alleging negligence and malpractice at the VA in Long Beach resulted in her husband’s death. The suit was based on the Federal Tort Claims Act.

The government filed a motion to transfer the case to the Central District Court of California.

The U.S. District Court in Nevada discussed transfer of a case rules and case law applicable to Mrs. Moyer’s request.

The court analysis focused on the following:

* California substantive law would apply to this lawsuit, as is required under the FTCA;
* The suit should be prosecuted in Nevada, as it is more convenient for Mrs. Moyer, and the government has many more resources to prosecute the suit in Nevada than having Mrs. Moyer defend the suit in California;
* The deceased and Mrs. Moyer were/are from Nevada, and although the government’s key witnesses have little contact with Nevada, Mrs. Moyer’s contacts slightly outweigh those of the government’s witnesses;
* The court acknowledged much of the care of Mr. Moyer occurred in California but he also received care at the Nevada VA;
* Although California has an interest in ensuring its VA resident doctors receive fair treatment in determining if malpractice was committed and this interest favors the suit being transferred to California, Nevada has just as strong an interest in the treatment of its veterans. Mrs. Moyer, being a citizen of Nevada, should be compensated if any negligence or malpractice took place.

Weighing these, and other, factors, the Court ruled that the government’s motion to transfer the case be denied.

Although a small victory, Mrs. Moyer, through her attorneys, was able to keep the case in her home state, which resulted in more convenience and less cost to her than having it moved to California.

According to the district court in Nevada, the case was dismissed/closed in 2014, though further details were not available. A request for information from Mrs. Moyer’s attorneys was not returned.

Being a plaintiff against the government can be daunting. But this veteran’s widow prevailed in this instance. I, for one, am glad she did because the case illustrates that court systems of the U.S., both state and federal, decide cases before them based on applicable law and only after carefully considering the unique facts of each case.

Note: Nancy Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice.

By | 2015-11-11T13:08:43-05:00 November 11th, 2015|Categories: Nursing Careers and Jobs|0 Comments

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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