Court Win for VA Despite Terrible Misdiagnosis

     CHICAGO (CN) – The child of a veteran who killed himself after a radical prostatectomy left him incontinent and impotent does not have a wrongful-death case against doctors who misdiagnosed him with cancer, a federal judge ruled.
     Doctors at Edward Hines Jr. Veterans Administration told John Dux that he had tested positive for prostate cancer, and recommended he undergo a radical prostatectomy.
     After the surgery, Dux suffered incontinence and had to wear diapers everywhere he went. Sexual dysfunction also interfered with Dux’s intimacy with his girlfriend.
     A couple months later, the doctors told Dux they had made a mistake – they had accidentally switched Dux’s biopsy sample with that of another patient.
     Seven months after learning that he had been cancer-free the whole time, Dux shot himself in the head.
     Although Dux had threatened suicide before – he had serious mental health problems from being sexually abused as a child, and suffered from post-traumatic stress disorder after serving in Vietnam – his depression allegedly worsened significantly after the surgery.
     Dux called a friend the night of his suicide and said he was “in trouble,” according to the federal complaint his family filed in Chicago. A car had cut Dux off that day as he was leaving the VFW, so Dux had gotten out of the car and punched the other driver in the face. He told his friend he was afraid of being arrested for assault. Then he shot himself.
     Shannon, the veteran’s daughter, sought damages from the VA hospital for wrongful death and for her father’s pain and suffering.
     U.S. District Judge Joan Gottschall on Thursday upheld Shannon’s claims for damages on behalf of her father but rejected the wrongful-death charge.
     Though the government conceded that the switch of Dux’s biopsy sample amounted to a breach in the standard of care, “a negligent actor cannot be liable for a victim’s decision to kill himself” under Illinois law, the 15-page opinion states.
     The complaint does not claim that the prostatectomy left Dux “bereft of reason,” according to the ruling.
     Although Dux’s doctor described him as “hopeless and saw no future for himself,” Gottschall said “this is significantly different than being ‘insane and bereft of reason’ in terms of whether the act of suicide is ‘voluntary,’ thereby ‘breaking the causal connection between the injury and the suicide.'”
     In addition, Dux was not receiving psychiatric care at the hospital, so the hospital’s negligence does not qualify as “psychiatric malpractice,” an exception to the general rule, the court found.
     Gottschall wrote in a footnote that she found Illinois’ general rule “misguided,” and “premised on an antiquated view of suicide as being a wholly voluntary act.”
     Nevertheless, the judge said her decision is bound by Illinois law.

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