I am filing a Case in Federal court in Colorado and I have…
I am filing a Case...
I am filing a Case in Federal court in Colorado and I have the Statute fot wrongful death for the following case now I need the Statutes for negligence and mal Practice. See below Recently I was given access to the medical files of my father Lt. Colonel (dec) Earl J. Flanagan, SSN XXX-XX-XXXX, I have spent many hours reviewing the files and have found that his medical treatment during his active duty and retirement years was negligent and probably contributed to his death. I am certain that you will also find the course of his care and treatment while he was still on active duty and after his retirement up to the time of his death was in general questionable, negligent in certain areas, border line criminal and eventually fatal regarding two specific conditions. First, you need to consider recent revelations about the collateral damage that was generated by the dropping of atomic weapons on Hiroshima and Nagasaki to their logical conclusion and apply common sense in reviewing the unit history of my father’s company as it entered into mainland Japan. Second, you need to compare his medical history with the medical histories of the Marines that were involved in the clean up of Nagasaki and Hiroshima. Due to the refusal by the Department of Veteran’s Affairs to re-open my mother’s claim she has was forced to survive on a social security insurance benefit rather than on the death benefit that normally would be awarded to the survivors of an Air Force Lt. Colonel. The VA has responded to her request to re-open the original claim made immediately following my father’s death with what I consider a direct violation of her rights as a survivor of an American serviceman. The VA is claiming that there must be “new medical evidence” in order to re-open a VA claim. This statement by the VA is not only false it is contradictory to the rights, which the VA should protect on behalf of the veteran and his survivors. I have been informed from members of the VA in Washington that it is always the right of a survivor to have a claim re-opened, that there doesn’t have to be any “new medical evidence” or new information of any type for a survivor to have a claim re-opened and reviewed. This makes practical sense in light of past abuses by the VA in overlooking or making the wrong determination during the original review of a case. I shouldn’t have to remind your office of the instances where the VA had to revisit the claims of veterans many years after the initial claim was ruled on solely based on new information as to the effect of certain conditions that a serviceman may have been exposed to (Agent Orange is just one example). Beyond that, it is also the right for a survivor to claim that the military was negligent and/or may have conducted itself in such a manner as to have contributed to or caused the loss of life. Friendly fire would be one such case; exposing troops to substances that found harmful many years after the fact would be another. Finally, negligent medical treatment would be another instance where no new information is presented by the standards of acceptable treatment and/or the understanding of potential risks has changed are accepted reasons for re-opening a prior claim. An even more compelling reason from the standpoint of the duty and respect owed to a veteran and his survivors is that it has always been a legal standard that the burden of proof is on the VA and the military, therefore any survivor that questions a ruling is entitled the right to have the case reviewed. If we are not afforded this basic right with out the stipulation that “new medical evidence” be the only justifiable reason to question the determinations of the VA, then we would have to have 100% assurance that the VA is infallible and incapable of making a wrong decision. I cannot make that claim and neither can any person that I have spoken with in the Federal Government or within the VA itself, mainly because it is a ludicrous statement to make regarding anyone or any organization. You do not have to dig too deep into history to produce numerous instances where the VA made incorrect decisions, covered up crucial information or denied benefits to veterans and survivors where they clearly should not have. The VA’s record is not perfect; hence, when a survivor questions a determination with the vigor and persistence my mother has shown it is the duty of the VA to respect her right to have a review of the case. My father’s death falls under several of these categories and should therefore be given not only the attention it deserves but should be scrutinized with even greater care than normally is given and it should be expedited in order to resolve this matter. My final point forming my position is that if I had been in a position to look at the context in which my father passed away at the time of his passing I would have made every effort to bring a case of wrongful death against the Air Force Academy Hospital. I would have demanded a review to determine the connection between my father’s active duty medical condition and the actual causes of his death. It boils down to a very basic expectation, which allows parents to entrust their sons and daughters to serving in this countries military. Which is, the US military will treat the men and women, who serve with the highest priority to their safety, and if the occasion arises, where this standard is abandoned every effort will be made to fix the problem and the military can be expected to deal justly with any veteran or their survivors. If this ever ceases to be the case we have lost the right to consider ourselves a great country, the only acceptable response is accountability.
Submitted: 11 years ago.Category: Legal
It is easy to list the questions that remain. Even after reading the autopsy that followed my father’s death, because the mistakes were so glaring and the contradiction between medical facts and the attempt made by representatives of the Air Force Academy Hospital to present my father’s passing as a simple case of someone succumbing to a very aggressive cancer is so blatant. The autopsy does not rectify these problems, in fact, the autopsy report creates even more doubt as to the actual cause of death and the conclusion seems to be an independent statement prepared without any regard to the information contained in the objective data within the autopsy. I will not bother to lead you through the step by step process I followed which led to the questions being generated in my mind which led to the research and reading of medical record. Rather I prefer to give you the scenario of what I believe transpired which is supported by the facts found in my father’s medical files, movement orders, personal letters and the missing pieces are created through deductive reasoning and common sense. The result I feel is compelling enough to require the initiation of an investigation. When someone makes the sacrifice to serve his country, I believe his country has the duty to answer for the way it utilizes that service. There should be no doubt as to the commitment of this country dealing honorably with those who love it enough to defend it. If there is even the smallest basis to believe that negligence or wrongful death was the result, then a full investigation should ensue. Following is what I believe to be an accurate account of my father’s history from the point he joined the Army Air Corps. The Air Force should reach a speedy resolution because he served without question, now it is long past time that this country produces a compelling explanation for its actions. In addition, the Air Force needs to deal honorably with an equitable compensation for its actions.
My father joined the Army Air Corps in 1940 and his entrance physical indicated he was in excellent health. He had a relatively un-eventful wartime campaign and at the time of cessation of hostilities, he was stationed on the Island of Biak. His company was then ordered to fly into Tokyo as part of the occupation forces. On the flight to Tokyo, the plane he was aboard flew a course that allowed them to fly over Hiroshima and Nagasaki. Since the transport planes of that time did not have airtight cabins and the radiation that would have still been present one month after the bombing consists of molecules much smaller than oxygen molecules, it is highly likely that some level of exposure occurred as they flew over the two sites. My father started to have High Blood Pressure readings during the late 40’s and early 50’s. His medical records show a pattern of High BP readings followed by several lower readings then another High BP reading would appear, this pattern persisted until his death and be kept in mind when considering weather his treatment was appropriate, negligent or intended to increase the possibility of his death. During the mid 50’s, my father had treatment for a cancerous mass near his eye. His medical record indicates that the tumor was to close to the eye to ensure a complete removal of the cancerous tissue, and the tumor was “not completely excised”. Yet the tumor board which tracks patients for the 5 years following surgery declared that the tumor had been removed and since he had no re-occurrence in the ensuing 5 years that he was CURED. Anyone who understands the nature of cancer knows this to be an impossible statement to make. Removal of a minimal clear tissue around a tumor is required; in fact, his record states that the tumor “was not completely excised”. Leaving any part of the tumor remaining in his body meant by the very nature of cancer that it was going to grow and spread, there is no way that any board could claim he was cured. My father made many visits to the doctor over the years before his retirement with complaints of fatigue, abdominal pain, weight loss and a lump on his stomach that the doctors could not diagnose. This is very similar to the symptom logy that the Marines were experiencing that had been on the ground at Hiroshima and Nagasaki. It has been the claim of the doctors that treated my father that his BP was under control with medication and diet, but his autopsy noted that he had essential Hypertension (High BP that had no identifiable cause). The standard treatment for hypertension is to treat with medication from one of three groups of medicines designed for treating High BP with continued adjustment in dosage strength until the condition is under control or they reach the recommended maximum strength dosage. At that point, the addition of a second medication from one of the other two groups is ordered and the process repeats until they reach the maximum dosage on both medications or until the condition is controlled. If this still does not control the condition within a reasonable period, usually 3-6 months, then a move from treating essential hypertension to looking at a possible physical problem, such as heart disease, kidney or liver disease as the cause for the hypertension. This is not a new standard for treatment it has been the same method for many years. Yet, my father’s condition existed well before his retirement date and remained until the time of his death, yet the doctors that he was seeing during this period never transitioned to searching for a physical cause for his condition. If they had done this in a timely manner I have no doubt that his cancerous condition would have been uncovered many years before 1969. As we, all know an earlier diagnosis would have given him a much higher chance of surviving.
It is my belief that my father had been exposed to radiation in Japan and it was working its way through his internal organs causing his high BP. The treatments applied by his doctors would initially create a reduction in his hypertension, but as the physical damage increased to his organs, his BP would increase and further adjustments were made to his medications. The cycle would continue with doctors adding different medications finding some success initially as they increased each new combination. However, the accepted standard is that once a combination of medications controls the condition there should not be any further adjustments necessary, because high BP is a manageable condition. It is evident that the composition of medications my father was on changed repeatedly over his final years in the military and in his retirement. This should have led to the search for a physical cause for his condition. Therefore, the statement that his hypertension was controlled is a false statement and contradicted by the evidence from his autopsy. At the time my father retired his exit exam indicated he had High BP and an extremely high cholesterol count. Also around the time of retirement he was put on Phenobarbital a drug used only for the treatment of seizures, which he did not have, and which carries a warning that anyone with a heart condition or liver damage should not take, it also has the side effect of raising a person’s BP. My personal physician has reviewed my father’s medical files and has found no medical reason for him to be on Phenobarbital. He has also stated that prescribing this medication is contradictory to the efforts to control his hypertension since it would increase his BP and make it more likely he would suffer a heart attack or stroke if he ever stopped taking this drug. Phenobarbital is very addictive and after long periods of taking this drug, it is common knowledge that a patient should not stop taking this drug quickly as it may lead to heart failure or other significant cardio vascular problems. My father was on this medication for 7 years before his death. My father had a steady drop in weight starting in the late 50’s and continued fatigue (also reported by the Marines from Hiroshima/Nagasaki). In November of 1969, his doctors discovered that he had cancer in his lungs, yet they continued to prescribe Phenobarbital and they did not attempt any treatment for his cancer at this time. He had several more high BP readings, which again led the doctors to alter his medication. In June of 1970 it was discovered that the cancer was throughout his body. Two weeks prior to being admitted to the Hospital he was placed on Provera, a female Hormone Replacement Treatment, I have spoken to cancer specialist that state there is no known use for Provera in the treatment of cancer, but it does have some very serious side effects. First it elevates the BP increasing the chance of heart attack and stroke, second a primary warning with Provera is that it should never be given to someone with High cholesterol for the same reasons that it greatly increases the risk of hear attack and stroke. The explanation given to my mother at the time was Provera was part of his cancer treatment. My father was admitted into the Academy hospital at which time they immediately suspended his medications, Which in the case of Phenobarbital is extremely dangerous, in order to permit the chemotherapy treatments to begin. His condition accelerated and within a month, he was dead. The questions that need answering are why did the military wait until 1970 to start treating his cancer when my father had denied long-term disability insurance from a life insurance company in 1963. The life insurance company based its decision on lung X-rays taken by the government immediately after his retirement. Why has there never been an explanation for placing him on Phenobarbital and Provera and then removing him from it in a cold turkey fashion. Why did the doctors caring for my father avoid consulting with my mother about his condition, why hasn’t the fact that what he appears to have been suffering from was radiation exposure rather than cancer never been explained. His autopsy does indicate the extent of his condition but these facts have always been overlooked there is an extensive amount of information about the severity of the condition of his heart and the large percentage blockage in the arteries leading from his heart. It has all the indication that the high BP he suffered from for years, dating back to his days in the service, caused extreme damage to his heart, arteries and organs. Once he entered the hospital and he was taken off the Phenobarbital, a drug he should never have been on, and the course of chemotherapy treatment began, there was no chance that he was going to survive.
In conclusion, the treatment of my father was so blatantly negligent and the course of his treatment both during his active and retirement years point to malpractice and wrongful death. I have only become aware of the medical facts within the last 12 months therefore establishing a contemporary date for the statute of limitations. The most important issue for my mother and my two siblings is answers as to why the military was so grievously negligent in its care for a man who served over 25 years. We want answers to the exposure to radiation questions, to the incompletely excised tumor and most importantly to the treatment, which seemed more aimed at making his condition worse, or ending it sooner than would have been natural. Understanding that these answers are not likely to be produced we have discussed a financial compensation. For the years within the military when his medical treatment was not controlling his High BP, for the reckless exposure to the radiation at Hiroshima and Nagasaki and for not completely excising his cancerous tumor then declaring him Cured we are demanding 10 million dollars. For the years between retirement (1963) and his passing (1970) where my father was treated with numerous medications that he did not need to be on, Phenobarbital, Provera and others, but were in contradiction to his symptoms of high BP and high Cholesterol we are claiming negligence and malpractice and demanding 10 million dollars. For his death at the age of 55 when there is an excellent possibility that he may have lived longer maybe even survived the cancer if it had been detected in the early or mid 60’s, for every year that the USAF stole Earl J. Flanagan away from his family we are demanding another 10 million dollars. These numbers will be reflected on the form 95 as a lump sum of 30 million with a note to see attached. I am attaching a copy of my fathers Autopsy, and a copy of several sheets from his medical file showing the Phenobarbital and Provera prescriptions as our evidence. I am sure that you will have access to my father’s complete medical files and personnel records, showing movement orders etc. I am also CC’ing Senator Jon Kyl’s office as they have requested an investigation be initiated by the Air Force also. I am requesting that any correspondence, results or requests from your office also be CC’d to Jon Kyl’s office as he has expressed an interest in following this case, I have included the address and contact information of his office below.
Senator Jon Kyl
Attention: XXXXX XXXXXdy
3200 East Camelback Road Suite 120
Phoenix, AZ 85016