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VETERAN'S COURT VICTORY OFFERS HOPE TO FAMILIES
EXPOSED TO DISEASE -- U.S. District Court Judge
denied
the Government's Motion which claimed that the
Government
owed no duty to the family of a Veteran.
Concluded that
VA doctors do owe family members a duty to warn
of
risk when patients have symptoms of a disease
that is well-known to be contagious.
Arvid Brown holds a 1999 family portrait.
His wife,
Janyce, died last year, and children Asa and Helen
are disabled. Brown links their health woes to a
disease he contracted in the Mideast.
I originally posted this story in August of
2006.
Now, we have had some action in the Court.
I received the following statement from
attorney Michael Viterna of the law firm Fausone Bohn, LLP.
Mr. Viterna's statement fully explains the good
news for veterans and their families as this case goes forward.
And, be sure to read the original story
following Mr. Viterna's statement.
----------
IMMEDIATE RELEASE
VA OWES A DUTY TO VETERAN’S FAMILY
Army veteran Arvid Brown, while serving in Saudi Arabia during the
Persian Gulf War in 1991, was bitten by “sand flies” and
contracted the parasitic disease Leishmaniasis. Sand fly bites are
the most common vector by which this infectious disease is transmitted
to humans.
Upon discharge from active duty, Mr. Brown of Flint was treated at
Michigan VA hospitals for service related symptoms on over 50 visits.
The VA never looked for Leishmaniasis as a cause of his symptoms,
ignoring his service and medical history. Mr. Brown was finally
diagnosed by a private physician in Michigan with Leishmaniasis in 1998.
Mr. Brown’s wife was infected with Leishmaniasis because no one ever
diagnosed Mr. Brown and
told him of the infectious nature of this disease and its ability to be
transmitted by sexual activity. Mrs. Brown gave birth to two children –
both of whom were infected with Leishmaniasis in the
womb.
His wife and children sued the VA under the Federal Torts Claim Act in
September 2004 because they were infected with Leishmaniasis. The
Government sought to have the case dismissed claiming that the VA owed
no duty to the Veteran’s family. The family claimed that VA doctors
committed malpractice in not diagnosing Leishmaniasis and failing to
warn the wife that the disease could be transmitted to her and the
children.
Judge John Corbett O’Meara of the United States District Court, Eastern
District of Michigan, denied the Government’s Motion for Judgment on the
Pleadings which claimed that the Government owed no duty to the family
of a Veteran in an Order dated June 18, 2007.
The Court, relying on Michigan law, concluded that VA doctors do owe
family members a duty to warn of risk when patients present with
symptoms of a disease that is well known to be contagious. A duty of
reasonable care may arise on the part of the Government.
The case against the VA will continue and the parties have agreed to try
the issues of liability in the fall of 2007.
Michael Viterna
Fausone Bohn, LLP
www.fb-firm.com
Northville, Michigan
(248) 380-0000
www.legalhelpforveterans.com.
----------
Original story
here...
http://www.detnews.com/
apps/pbcs.dll/article?AID=/20060807/LIF
ESTYLE03/608070331/1003/METRO
Story below:
-------------------------
Is family a Gulf War casualty?
Ruling lets ill widower propel lawsuit
Paul Egan / The Detroit News
SWARTZ CREEK -- Nobody can say U.S. Army veteran Arvid Brown's Gulf War
illness is all in his head.
Brown's late wife, Janyce, caught leishmaniasis -- a sometimes deadly
parasitic disease borne by sand flies that can attack the body's cells
and internal organs -- a malady he brought home from Operation Desert
Storm. So did the Swartz Creek couple's two young children.
Now, the U.S. Court of Appeals has ruled the federal government and the
Department of Veterans Affairs can be sued for alleged failure to
diagnose Brown's illness and for any injuries he and his family
suffered.
Veterans' groups are hailing the decision as a victory for families of
tens of thousands of veterans of not only the first Gulf War, in which
Brown served, but subsequent Mideast conflicts.
"This is a huge case," said Joyce Riley, spokeswoman for the American
Gulf War Veterans Association in Versailles, Mo. "This gives a lot of
veterans a lot of hope."
When Brown, now 48, returned from the Gulf War in 1991, he couldn't
understand why his once-vigorous health was deteriorating. His head,
muscles and bones ached, his strength was sapped; he was constantly
exhausted but could not sleep.
Doctors with the U.S. Department of Veterans Affairs could not pinpoint
an ailment. They denied him disability benefits in 1995, and Brown said
they prescribed painkillers and mood-altering drugs that made things
worse.
It was Brown's wife, Janyce, who had the research skills and persistence
eventually to find a doctor who in 1998 diagnosed Brown with
leishmaniasis.
By then, Janyce, too, had contracted the disease and both the couple's
children had been born with it and other ailments, according to medical
reports filed in the case from Dr. Gregory Forstall, then-director of
infectious diseases at McLaren Regional Medical Center in Flint, now in
private practice.
The government has not disputed the medical reports.
Janyce Brown developed a series of ailments and last year died at age 43
of a rare and inoperable form of liver cancer. Though no definite link
was established between her leishmaniasis and other diseases, Arvid
Brown said his wife was healthy before they met.
Janyce Brown in 2004 brought a $125 million lawsuit against the
government, but a federal judge in Detroit ruled the family couldn't sue
for injuries a soldier suffered while on active duty.
U.S. District Judge John Corbett O'Meara's decision was based on the
Feres doctrine, after the soldier involved in a precedent-setting 1950
U.S. Supreme Court decision. Army Lt. Rudolph J. Feres died in a 1947
fire caused by a defective heater in a military barracks at Pine Camp,
N.Y. The court ruled his widow could not sue because Feres was on active
duty.
Late last month, the U.S. 6th Circuit Court of Appeals in Cincinnati
partially overturned O'Meara's decision, saying the government is not
liable for injuries suffered while Brown was on active duty but it can
be sued for what happened once he returned to Michigan. The government
may appeal, officials said.
"They should not be allowed to just use us up and throw us away," said
Brown, now alone and raising two disabled children, ages 9 and 10, on
his disability income. "Somebody has got to be accountable."
Many look toward lawsuit
Mark Zeller, 42, a Gulf War veteran in Dahlonega, Ga., said he is about
to bring a lawsuit against the government and believes the decision in
Brown's case will strengthen his legal position.
"I can't do anything and I have to sleep all the time," said Zeller, who
has been diagnosed by Veterans Affairs doctors with chronic fatigue
syndrome but says his wife and five children also constantly suffer from
flulike symptoms.
The Feres doctrine "safeguards the government, but what safeguard do we
have?" asked Zeller.
Leishmaniasis is little-known in North America but common in southwest
Asia and many other parts of the world. According to the U.S. Centers
for Disease Control and Prevention, about 12 million people in the
tropics and subtropics have the disease. One form produces skin lesions.
The more severe and deadly form, which Brown has, attacks blood cells
and the body's internal organs. Like malaria, it is a chronic disease
that can be controlled but not cured.
Dr. Katherine Murray Leisure is a former Department of Veterans Affairs
doctor now in private practice in Lebanon, Pa., specializing in
infectious diseases. She said leishmaniasis if often difficult to
diagnose and could be an underlying factor in half or more of the
thousands of cases of veterans commonly referred to as suffering from
"Gulf War syndrome."
Bedouins and others who live in the desert clothe their entire bodies
for good reasons, Murray Leisure said. But, when U.S. forces go to the
desert to fight, "we try to pretend we're at the Jersey shore."
Situation likened to Titanic
Terry Jemison, a spokesman for the U.S. Department of Veterans Affairs,
said he could not comment on the Brown case because of the ongoing court
case. But he said the department is aggressively researching the
ailments of Gulf War veterans and plans to spend $15 million a year on
research for the next five years.
No reliable numbers are available on how many family members believe
they have been infected. But Riley, a registered nurse and former U.S.
Air Force captain, said she believes tens of thousands of veterans'
relatives have suffered.
"I think this is the Titanic," said Robert P. Walsh, Brown's Battle
Creek attorney. "All these guys saw was the tip of the iceberg."
Arvid Brown, who grew up in southwest Detroit, spent about six months
overseas during Desert Storm, helping to build, maintain and operate a
prisoner of war camp near Hafr Al-Batin in northeastern Saudi Arabia,
about 25 miles from the Iraqi border.
Brown remembers the sand flies, the camel spiders and the bug repellent.
He remembers meeting soldiers in the desert who wore dogs' flea collars
around their necks, wrists and ankles and thinking how unhealthy that
seemed.
The muscle aches, bone pains, headaches and rashes began while he was in
Saudi Arabia, but "it was easy to attribute it to heat and everything I
was doing," Brown recalled.
Long-delayed diagnosis
Solving the mystery would take seven years as Brown's condition worsened
through periods of disorientation, blackouts, extreme light sensitivity
and almost unbearable pain. By 1998, when he was finally diagnosed,
Brown had lost his job, been forced to give up driving and said he awoke
early most mornings from a fitful sleep, vomiting blood.
Veterans Affairs doctors, who according to court records examined Brown
on Sept. 13, 1994, but did not detect the disease, said he was suffering
anxiety attacks and prescribed pills, Brown said. The department did not
grant him benefits until 1998 and only this year recognized his
diagnosis of leishmaniasis.
Jemison, the VA spokesman, said the department "remains committed to
ensuring all veterans receive high-quality care."
In its answer to the lawsuit, the VA denied failing to diagnose Brown
and denied committing malpractice in the medical care it gave Brown.
Somehow, amid the pain and fatigue, Brown, who was divorced from his
first wife soon after returning from the Gulf, was able to meet and
marry the woman he credits with saving his life.
Brown wed Janyce Surface in September 1994 as his health continued to
spiral downward. He lost his job and they struggled to pay bills.
Children arrived: Asa, now 10, in 1995, and his sister, Helen, now 9, in
1997. Both were born with severe handicaps and later tested positive for
leishmaniasis. Helen is still unable to speak.
It was Janyce Brown who got her husband an appointment with Forstall,
who diagnosed Arvid Brown with leishmaniasis in October 1998.
Chemotherapy put the disease into remission, though Brown continues to
struggle with his health today.
By 2000, Janyce Brown and both children had also tested positive for
leishmaniasis. As Janyce struggled to care for her husband and look
after two young children with cerebral palsy, her own health rapidly
deteriorated. She died at home of cancer.
"She was an extremely intelligent individual, someone with the will and
the nerves of steel and the tenaciousness of the meanest bulldog you had
ever come across," Brown said.
"She was fighting for her husband, the man she loved … and her children
… She will always be my biggest hero."
You can reach Paul Egan at (313) 222-2069 or
pegan@detnews.com.
-------------------------
Larry Scott --
