Schertz v. Shinseki, docket no. 11-2694 (Vet. App. Sept. 26, 2013)
Under 38 U.S.C. § 1151, an “event not reasonably foreseeable” is an objective standard based on what a reasonable health care provider would have foreseen. Actual foreseeability by the patient’s medical provider is not dispositive.
This case involves a veteran who suffered partial paralysis as a result of VA surgery. Prior to surgery, he and his wife had been informed, both in writing and orally, of the potential risks of surgery, to include paralysis. The veteran lost the use of his legs shortly following surgery and filed a claim for service connection under section 1151. The Court reviewed the statute and VA’s implementing regulation, and determined that while the term “reasonably foreseeable” is ambiguous, VA has adopted an objective standard to interpret the term, based on the “reasonable health care provider.” The Court held that what was actually foreseen by the physician – and what was provided in the informed consent – is not dispositive, but rather is evidence to be weighed in determining whether an event was reasonably foreseeable such that a reasonable health care provider would have disclosed the risk. 38 C.F.R. §§ 3.361(d)(2), 17.32. Because the Board did not consider whether a “reasonable health care provider” would have disclosed the possibility of spinal cord injury and paralysis as a reasonably foreseeable risk, the Court remanded the case back to the Board to make this determination in the first instance.