Family pursues complaint against Lexington VA for quality of care father received

ctruman@herald-leader.comJune 4, 2014 

BARDSTOWN — Louis Smith died a year after he had to go on dialysis three times a week for four hours a treatment. That much is beyond dispute.

A World War II veteran with a Purple Heart and two Bronze Stars who lived in Springfield, Smith was one month shy of his 92nd birthday when he died Jan. 28, 2012, at Jewish Hospital in Louisville.

Before a 2011 stay at Lexington's Veterans Affairs Medical Center on Cooper Drive, he mowed his own yard, cooked his own breakfast and renewed his driver's license, his children say.

The question Smith's six children are asking is whether the treatment — or lack of — at the VA Medical Center hastened his death.

Smith's children allege that when a patient at the VA hospital, Smith was repeatedly denied the chance to see a nephrologist (a kidney specialist), was inexplicably affixed with a "Do Not Resuscitate" wristband for which there was no paperwork, and was told he had prostate cancer while a urologist and associate laughed about a TV show.

Smith's family says they were urged to consider palliative care for him, which relieves pain, symptoms and stress of serious illness and is sometimes considered a way to help chronically ill patients suffer less before death.

Also, they allege that their father received "improper care/lack of correct and appropriate care while a patient at VA hospital."

The family contacted media outlets after allegations ranging from secret waiting lists to poor care at VA hospitals nationwide prompted last week's resignation of Veterans Affairs Secretary Eric Shinseki and widespread scrutiny of care at VA hospitals.

U.S. Sen. Rand Paul, R-Ky., last week sent a letter to acting VA Secretary Sloan Gibson requesting immediate information about quality of care at Kentucky VA medical facilities, saying that he has heard complaints from Kentucky veterans on subjects ranging from delays in appointments to quality of care.

Asked about Smith's case, VA Lexington spokesman Desti Stimes said that the hospital "cannot comment on specific patient treatment."

Because of what their father went through, the Smith family has requested $500,000 in personal injury and $500,000 in wrongful death damages through a federal government tort claim, but say their crusade is not about money, but rather about the lack of proper care given to veterans in the medical centers dedicated to their care.

What's unusual about Smith's case is that his children kept a detailed narrative account of his treatment at the VA hospital, starting with when they were told that no bed was available for him at the Lexington VA hospital.

The Smith children said that they began keeping notes because they had always been involved in their parents' medical care and the notes helped them to communicate with each other and keep track of appointments and treatments.

In an Aug. 10, 2011 e-mail to the office of U.S. Rep. Brent Guthrie, R-Ky., siblings Janette Smith, Betty Abell and Jodie Smith said that the treatment their father received was "inhumane, negligent and insensitive."

"He was there for his country and he was proud to do it, and where were they for him?" Abell said.

Kidney ailment led to hospitalization

On Jan. 3, 2011, Louis Smith was taken by his daughter Janette Smith to see his primary care doctor at the VA in Lexington about his continuing kidney problems, according to the Smith family's extensive notes.

Louis Smith wanted to be hospitalized for his kidney ailment; his daughter Janette backed him up on the request.

The doctor's response: "We need to have a reason to admit him."

On Jan. 26, Abell took her father to visit his doctor, Salem George, in Lebanon. George diagnosed Smith as being in full renal failure, according to the Smith siblings.

Smith's VA doctor advised that he be taken to the local emergency room and catheterized. He was, and immediately, a liter of urine was expelled. The next day, after admission to Lebanon's Spring View Medical Center, seven liters were expelled. The same day, the VA hospital on Cooper Drive said it did not have a bed for Smith.

Four days later, Smith was transferred to the VA and was told that he would see a nephrologist the next day. Instead, Smith saw a urologist, who said that Smith did not yet need to see a nephrologist. After Louis Smith had a restless night, his family requested a consultation with the urologist, who the family was told refused to see them, according to family notes.

Eventually, the family met with the urologist, who told them that their father had a urethral blockage and prostate cancer. The family's account said "urologist and associate were discussing and laughing about a TV show while family members and patient were visibly upset."

The urologist allegedly told the family that if the patient were his grandfather, he would do nothing because Louis Smith had lived "a long, good life."

"We thought, 'We're not here to talk about what kind of life Daddy has lived,'" Abell said. "We're here to get Daddy well."

The doctor then recommended cancer drug injections and oral medication that would shrink the prostate. No prostate biopsy was performed.

On the fifth day of VA hospitalization, Louis Smith still had not seen a nephrologist. Smith's children insisted that a nephrologist needed to evaluate their father. The primary care physician told the siblings that a kidney specialist was not needed.

On Feb. 4, Doris Helm and Abell walked into their father's room and found him chatting with a nephrologist, who said he would review Smith's records.

Three days later, a second nephrologist told the family that Louis Smith had 18 to 19 percent kidney function. Meanwhile, the siblings wrote that their father's pain level continued to increase and that he was "very emotional" with "crying episodes."

At one point, Louis Smith told Abell, "Get me out of here; they are going to kill me!"

Soon after, with Louis Smith experiencing numbness and tingling in his extremities and hoarseness in his voice, Janette Smith was told her father was more stable and would be released as an outpatient with a catheter.

The siblings requested that their father be transferred to Jewish Hospital in Louisville, where their doctor at Spring View Medical Center had a contact among the admitting physicians. The transfer took 36 hours.

When Louis Smith arrived at Jewish Hospital he was in critical condition. On his second day there, Feb. 10, Louis Smith began to have heart problems. A day later, he had a heart attack and was in critical condition for the next seven days.

Louis Smith was released from the hospital on March 11, 2011, and went to rehab. However, his kidneys had been irreparably damaged, and he had to be on dialysis for the rest of his life.

Smith died of pneumonia, atrial fibrillation and end-stage renal disease nearly a year later at Jewish Hospital.

"His mind was sharper than my mind," Abell said of her father before his kidney problems and VA stay.

"For a man his age, he was in good health," Janette Smith added.

Since his death

The family filed a federal tort claim the day after their father's death, alleging "failure of hospital and hospital staff to act in a prudent manner; misdiagnosis and gross negligence" that led to Louis Smith's death.

They received a response dated July 26, 2013, in which it was alleged that Smith was taking a medication prescribed by a non-VA health care provider that may have affected his kidney function. The family claims to know of no such medication.

The letter also claims that Louis Smith "was ... seen by a VA nephrologist on more than one occasion during his short admission. There is no evidence that an earlier nephrology consult would have affected the care Mr. Smith received, or that any change in his care would have affected his medical condition and his subsequent need for dialysis."

"Since VA staff did not negligently injure (sic) Mr. Smith, we are denying your claim," the letter said.

Another letter, which was sent to the house of the late Louis Smith in Springfield in January of this year, appears to advise the family that it may re-initiate claim proceedings using executors of the estate and a new claim form.

The Smith siblings said that they're not giving up on the tort claims process, or on getting out word about how their father was treated at the Lexington VA.

On May 30, the family re-filed its tort claim.

"We have never been interested in the money," Janette Smith said in an email. "We do want justice for our veterans."

Cheryl Truman: (859)231-3202. Twitter: @CherylTruman

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