The VA Again… Maybe.

Unfortunately, yeah, it’s the VA again. Or is it?

ITEM: VA Tries, Fails to Muzzle Ex-Employee

In the Washington Post, law professor Eugene Volokh beats them up over a gag rule that VA imposed on a fired whistleblower as a condition of taking a payoff to quit:

in January 2013, she and the VA settled their case: Aurore C. would resign, the VA would pay her $128,000, and

[Aurore C.] shall be prohibited from making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement.

In what seems to us (no lawyers here!) to have been a hearing before an Administrative Law Judge of the EEOC, this bold attempt to muzzle a mistreated employee was squelched on constitutional grounds.

But two weeks ago, the Equal Employment Opportunity Commission set aside the no-negative-comments clause “as an unlawful, overly restrictive confidentiality limitation, because it expressly deprives Complainant of her ability to contact Congress and otherwise limits her First Amendment Rights to communicate with the media about any of her [employment discrimination] claims.” (Aurore C. v. McDonald, decided Apr. 14, 2016.)

You might be thinking that private employers and other litigants do this all the time, in settlement terms; what’s the big deal? Per Prof. Volokh, it’s that VA is a government agency, which makes prior restraints on speech a “complicated question” compared to the private sector, where these kinds of settlement gag clauses are so common as to be standard — and are enforceable.

As usual, Volokh has deep insights, which we’ve trimmed for brevity:

I’m inclined to think that such a nondisparagement agreement, aimed solely at preventing embarrassment to the employer (rather than, say, preserving client privacy or national security secrets), is unconstitutional.

What troubles me more, though, is the political accountability question. Whether or not such agreements violate the First Amendment, should an executive agency really be trying to restrict its former employees from complaining about the agency to Congress, or to the public at large?

In Ms. C’s position, if the appeal to EEOC had not availed, she could not have said anything bad about the VA or its employees, like Secretary McDonald. Of course, nothing would have stopped her from going around to anybody she knows, saying, “Bob McDonald is the kindest, bravest, warmest, most wonderful human being I’ve ever known in my life.”

ITEM: Maybe It’s Not Just the VA

Here’s a headline to conjure with: Medical Errors are Third-Leading Cause of Death in the US.

This paper builds upon a recent study that found that more than 210,000 deaths per year occur due to medical errors. When adjusting for 2013 hospital admission rates, Makary and his colleague found that the present number is more likely 251,454 deaths per year — surpassing the CDC’s stated third-leading cause of death, respiratory disease, which kills close to 150,000 people per year. The leading cause of death in the US is heart disease, followed by cancer.

Naturally, the perps Dindu Nuffin.

The American Hospital Association has historically quibbled with similar figures for hospital deaths due to medical errors, putting the true number nearer the 98,000 estimated by the Institute of Medicine. In an email to STAT, the association affirmed that the IOM report is “based on sound scientific analysis.”

What they’re arguing about seems to be whether doctor and hospital cockups are third, fourth or fifth on the death-toll scale. Does it matter?

But maybe it’s not just the VA, then.

Perfect irony: the lead author, Dr Martin Makary, comes from the John Hopkins School of Medicine. It’s the separate Johns Hopkins School of Public Health, now a fully-owned subsidiary of Mike Bloomberg, that argues we should overturn the Constitution because “guns kill” ~30,000 a year, mostly suicides.

Physicians, heal thyselves.

Heh. Save a life — shoot a doctor. Save a platoon — shoot a VA doctor.

9 thoughts on “The VA Again… Maybe.

  1. DSM

    Wasn’t that in Catch 22? “Just say you like us.”

    The language is pretty standard and to keep quiet is part of the settlement you’re taking; cash for silence. That the gub’ment is paying out is pure BS. One, that’s taxpayers dollars. Two, as a taxpayer funded entity, success or failure, you own it. That’s the point of transparency. Alas, we should live in such a world…

  2. Mike_C

    >Heh. Save a life — shoot a doctor. Save a platoon — shoot a VA doctor.
    No no no no no! That adds to “gun violence” numbers. Bludgeon the doctor to death using a fedgov bureaucrat, thus carrying out not only your primary objective, but also ridding us of a bureaucrat*. And if enough bureaucrats are used in murders, then we may see “spontaneous” and “grassroots” [cough, cough] groups such as MAIB** arising.

    * do NOT for the love of God, leave the bureaucrat alive but brain damaged (more brain damaged) because that will cost big money to care for said bureaucrat
    ** I’m sure the expansion of the acronym is obvious

    Ob disclaimer: this is sarcasm, satire or some combination thereof. I do NOT advocate using bureaucrats (or anyone else) as blunt instruments and am not calling for any harm whatsoever to anyone. And we doctors should be allowed to kill ourselves in accordance with our quaint, time-honored traditional folkways, with excessive alcohol, for example.

    (Heh. I was attending our weekly case review session today – basically trainees presenting interesting/educational cases from the preceding week – when the case of an active and athletic young (early 40’s) woman who had a heart attack was presented. “This woman has no cardiac risk factors,” said the presenter. “Well, she does drink three beers nightly,” said the director of the stress lab, implying that that was excessive drinking. “Hell, she’s a piker — that’s just dessert,” I helpfully piped up. I’m astonished they still let me near the trainees. And Stress Director is right, 3 drinks*** per night is above guidelines for anyone, especially a woman.)

    ***One “drink” is 1 fl oz liquor, 4 fl oz wine, or 12 fl oz beer. For you people from countries that have never gone to the moon ;-) 1 fluid oz = about 30 ml.

  3. S

    Hey, NASA screwed up a Mars mission trying to convert Imperial-Metric, with a little help from ESA. The country that went to the moon doesn’t exist any more, and no humanis likely to go past LEO ever again.

    Back to killer medicine. I got out of aged care in part because of the quackery, added to the corruption and hypocrisy. The numbers are astonishing, once you dig a little past the BS barrier, and that’s only here in a country 1/4 your population. Your numbers may be a little low; Makary is probably conservatively correct. One death is a tragedy, a million is good business.

  4. Steve Temerlin

    I’ve written you before…….I’m a retired Navy Emergency Medicine physician with 6 deployments to OEF and OIF, working at a VA hospital since I left the Navy in 2012. Did you want to come to my house and shoot me?
    I’m kind of curious, do you also believe the statistics about college rape or military sexual assault? Do you think the administrative and political craziness of the VA is any different from the EPA, IRS, FBI, or any other giant government agency ruled by politicians and government labor union laws? Do you think that has anything to do with the actual medical care providers? If you think it is significantly different than military medicine, including the difficulty in both disciplining bad providers, and keeping and rewarding good ones, you weren’t paying attention. I’ve worked in dozens of different civilian and military hospitals over 40 years; the quality of medical care the VA delivers, and the degree of variation from place to place is the same as any other institution. There are good and bad hospitals and good and bad providers everywhere and in every system. And none of that is static.
    Do you remember just prior to Obamacare passing when every other news article was how wonderful the VA was? It was obvious propaganda; why do you think we are smothered in articles now wanting to shut it down when nothing has really changed? So the question is, since most news is agenda and propaganda driven, who benefits? If the VA shuts down, do you think some unicorns are going to shit out thousands of new physicians who will take a government reimbursement to see vets that doesn’t cover the expense of caring for them? Almost half of the physicians and nurses I work with are vets; do you think someone else will have the loyalty to put up with that?
    The never ending driving force of current government healthcare policy is to to generate public desire for single payer care, no matter that it requires crushing the medical system. Creating a clamor for shutting down the VA is a part of that.
    I read your blog because it reminds me of my time with Marines and SF; I find it comforting and I share many of your values and interests. Your writing is wonderful and your analysis of a great many subjects is thoughtful and thought provoking. Your writing about the VA is shallow and careless. If you are ever in the Pacific Northwest and want a tour of where I work, and to meet my colleagues, in order to better understand the issue, please send me an email.
    And just one more nag…do you think making a comment about killing physicians because of the percentage of bad medical outcomes is somehow different from what the Black Lives Matter cretins say about law enforcement? This is beneath you.

    1. Hognose Post author

      Steve — not planning to shoot any VA docs, and in retrospect the line was a little too glib. Of all the stuff I’ve written about VA, very little has addressed the doctors or nurses, because they don’t seem to be the problem. Instead, it’s the administration. I still don’t think it can be fixed.All th

      Single payer would be, basically, the worst of the VA system, for everybody. All these horror stories would be applied across the board and every one in medicine would be answerable to the People’s Commissar of Glorious Health, but accountable to no one.

      The brilliant (?) thing about ObamaCare is that they managed to use the rent-seeking behavior of insurance companies to get them to voluntarily climb to the top of the waterslide to extinction. If people hate insurers now (and they do, not without reason), wait ’til there’s only one and it falls under HHS.

  5. archy

    ***Heh. Save a life — shoot a doctor. Save a platoon — shoot a VA doctor.***

    ***Steve — not planning to shoot any VA docs, and in retrospect the line was a little too glib.***

    The worst atrocities I’ve personally witnessed at the VA have been the result of clerical/administrative blundering, the most atrocious, including a deliberate attempt to murder a veteran by prescribing a contraindicated drug and lying to him about it’s being sulfa-derived, to which he was allergic, coming from VA *health care providers* performing the duties of a physician, but without benefit of an M.D.s training. That included the techs at one VAMC who were having *races* to see how loud they could get disabled vets to scream.

    On the other hand, the absolutely best phleb tech to ever draw blood from me was a VA clinic phleb, who it turned out after I asked, was a veteran himself and had been a medic at a CSC in Iraq that we both shared a dislike for. I do not at all hope to see all the VA staffers eliminated, either by dismissal or deserved execution, but there are indeed some who deserve it. From what I’ve seen, it’s the ones who are not themselves veterans of military service who are, for the most part, where the problem lies.

    The Marines have it right: we should be taking care of our own. Ourselves.

    What do you call it when a veteran kills a VA hospital administrator? A: Self-defense.

  6. archy

    ***[Aurore C.] shall be prohibited from making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement.***

    Sorry, VA. No can do…that’s a felony:

    18 U.S. Code § 4 – Misprision of felony

    Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

    18 U.S. Code § 371 – Conspiracy to commit offense or to defraud United States

    If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

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