[00:00:02] Speaker 03: We have four argued cases this morning. [00:00:04] Speaker 03: The first of these is number 161315, Alice versus McDonald. [00:00:12] Speaker 03: Mr. Schroenhart. [00:00:23] Speaker 04: Thank you Judge Dyke. [00:00:24] Speaker 04: Good morning and may it please the court. [00:00:27] Speaker 04: Mr. Alice respectfully requests that this court vacate the decision of the Veterans Court. [00:00:32] Speaker 03: I found the case confusing because I couldn't really tell what the allegations supporting liability were. [00:00:42] Speaker 03: In other words, are they allegations of negligence or is the client relying on this non-foreseeability aspect of 1151? [00:00:58] Speaker 04: Well, Your Honor, neither at the [00:01:00] Speaker 04: or nor at the Veterans Court where there are ever explicit findings with respect to section 1151A1A or A1B. [00:01:06] Speaker 03: Well, what's the claim? [00:01:08] Speaker 03: What's the claim as to what caused this? [00:01:11] Speaker 03: In other words, you know, this comes to us in sort of an abstract posture, which I think makes it very difficult to address the legal question. [00:01:20] Speaker 03: And that has been historically a problem in these Veterans cases. [00:01:27] Speaker 03: Sometimes we're asked to decide abstract legal questions without knowing what the factual context is. [00:01:34] Speaker 03: What is the factual context? [00:01:35] Speaker 03: What is the claim of liability? [00:01:39] Speaker 03: What is the event that is said to lead to liability here? [00:01:44] Speaker 04: I can appreciate Your Honor's concern in this regard, and this case, as in many veteran's cases, [00:01:48] Speaker 04: there is the difficulty that there has not been complete factual development at the VA below. [00:01:54] Speaker 04: Forget about factual development. [00:01:55] Speaker 04: What's the claim? [00:01:56] Speaker 04: I appreciate that, and that's where I'm headed, Your Honor. [00:01:58] Speaker 04: Here, the veteran is claiming that either the phrenic, the lung disability resulting from severance of the phrenic nerve was an unforeseen consequence of the mini-maze procedure that was performed, or at minimum that the referral that he received was a negligent referral that ultimately referred him out for the procedure [00:02:19] Speaker 04: that resulted in the severance of the phrenic nerve. [00:02:21] Speaker 01: But the idea be that he was not a good candidate for that procedure? [00:02:25] Speaker 04: Either that he was not an appropriate candidate and was ill-advised in that regard or that he was directed to an inappropriate physician. [00:02:32] Speaker 04: The record here is not particularly well-developed as to what precise recommendations were provided by the VA physician Dr. Rotman at the Nashville VA to Mr. Ellis. [00:02:43] Speaker 04: His testimony would appear to establish that he understood the VA to be advising him [00:02:49] Speaker 04: to receive this specific procedure, that this is the specific procedure that was appropriate for him in this context, that the VA was asking him to get this procedure done elsewhere, and that he was to go back to his general cardiologist for a local referral, which was ultimately to Dr. Hall at Methodist Medical. [00:03:10] Speaker 03: But your problem with the theory of negligent referral, [00:03:14] Speaker 03: is that the Veterans Court made a specific finding that this hadn't been properly raised and couldn't be pursued. [00:03:23] Speaker 03: So it seems to me, on that theory, you were foreclosed. [00:03:27] Speaker 04: As to negligent referral, Your Honor, that may be the case. [00:03:30] Speaker 04: That was, in fact, the note of the Veterans Court. [00:03:32] Speaker 04: This case, like many veterans' cases, again, however, is one in which the veteran did not have legal representation up until a certain point. [00:03:40] Speaker 04: Indeed, the case was initially briefed to the Veterans Court [00:03:43] Speaker 04: without legal representation. [00:03:45] Speaker 04: When legal representation was suggested actively by the Veterans Court, representation stepped in to answer a series of specified questions set out by the Veterans Court. [00:03:55] Speaker 04: And so you are correct, the Veterans Court's decision notes in several places that various items had not been raised expressly by the veteran previously. [00:04:04] Speaker 04: In some cases, the Veterans Court went ahead and said, these are the types of things we'll find forgivable as an interesting or [00:04:12] Speaker 04: notable argument, so we will pursue it. [00:04:14] Speaker 00: But they did analyze and deny the negligent referral claim, correct? [00:04:20] Speaker 03: In brief, yes. [00:04:22] Speaker 03: So it seems to me that for our purposes we can consider the claim to be limited to the unforeseen consequences. [00:04:31] Speaker 03: I believe that's fair, Your Honor. [00:04:33] Speaker 03: Okay, so under the statute, and it's pretty easy [00:04:36] Speaker 03: if there's alleged negligence by the VA. [00:04:39] Speaker 03: It specifically says that you apply approximate cause analysis. [00:04:43] Speaker 03: That all fits within standard tort law. [00:04:46] Speaker 03: And I think we can all understand what the standards are. [00:04:49] Speaker 03: In any event, we don't have to worry about that today because we're not dealing with negligence claim. [00:04:53] Speaker 03: But the unforeseen consequences thing is a little complicated and doesn't neatly fit into the approximate cause analysis, as you say. [00:05:02] Speaker 03: Because the notion that something is unforeseen [00:05:05] Speaker 03: really conflicts with the whole notion of proximate cause that something is foreseeable, right? [00:05:12] Speaker 04: Not necessarily, Your Honor. [00:05:13] Speaker 04: There may be proximate causes where the link is not in advance foreseeable, but there is still clearly a proximate or direct cause. [00:05:23] Speaker 04: And the statutory language, of course, ties proximate cause to the event that was not reasonably foreseeable. [00:05:29] Speaker 04: Here the event was the severance of Mr. Olive's phrenic nerve during the mini-maze procedure. [00:05:35] Speaker 03: I'm sorry, I'm not understanding you. [00:05:37] Speaker 03: I thought that your theory was that, insofar as we're dealing with unforeseen consequences, that the statute doesn't impose a proximate cause requirement. [00:05:49] Speaker 04: As to the event not reasonably foreseeable, Your Honor, there is a proximate cause requirement. [00:05:53] Speaker 04: 1151 sets out two causal elements. [00:05:55] Speaker 04: 1151A1 begins with a general cause requirement that the cause of the disability be [00:06:02] Speaker 04: hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the secretary. [00:06:09] Speaker 01: And it's your position that the court below understood that or applied that in a proximate cause way and meshed the two standards of cause versus proximate cause. [00:06:18] Speaker 01: Do I have that right? [00:06:19] Speaker 04: Yes, Your Honor. [00:06:20] Speaker 04: As to that first causal element, it appears quite clear, especially given footnote eight in the veteran's court's opinion, [00:06:26] Speaker 04: that the Veterans Court was applying a proximate cause test to what is by the statute a general cause requirement in 1151A01. [00:06:33] Speaker 00: Does the statute require that you apply one of the elements first before you do the other? [00:06:41] Speaker 04: There does not appear to be an order of operations on the face of the statute. [00:06:44] Speaker 04: There appears to be two separate and distinct causal requirements. [00:06:46] Speaker 04: So you're saying that what happened is they conflated the two elements. [00:06:50] Speaker 04: Yes, Your Honor, or at minimum that in performing the cause by analysis, the general cause analysis, the Veterans Court inappropriately viewed that causal requirement as a proximate cause. [00:07:02] Speaker 00: But let's say we separated it out and we say there was no determination as to cause, but there's a determination as to proximate cause, and they got it right with respect to proximate cause. [00:07:14] Speaker 00: Are we looking at a harmless error situation here? [00:07:17] Speaker 04: Respectfully, no, Your Honor. [00:07:18] Speaker 04: Here, I do not believe the Veterans Court actually reached the second causal element at all, whether the approximate cause was an event not reasonably foreseeable. [00:07:27] Speaker 03: That's not... The approximate cause is a requirement for both the carelessness and negligence and the non-foreseeability thing. [00:07:38] Speaker 03: What is the significance that the other causal requirement may require less? [00:07:46] Speaker 04: Your Honor, it's a function of who the actor is or what, in fact, the cause is. [00:07:50] Speaker 04: This court has had occasion to look at the modern version of 1151 in, for example, VA v. Svrishnseki. [00:07:56] Speaker 04: In that case, the court distinguished between the two causal elements and specifically addressed the first general cause element, noting that that cause element need not be a direct cause, direct and proximate cause generally being understood to be synonymous. [00:08:10] Speaker 04: That first cause is not a proximate cause requirement. [00:08:13] Speaker 04: That that cause requirement does not require that [00:08:15] Speaker 04: the ultimate act of negligence, which was, I think, the focus of that particular case, be by VA personnel. [00:08:23] Speaker 04: The VA personnel need not actually be the actors for the second proximate cause element that we were looking for a general cause being medical treatment by the VA. [00:08:34] Speaker 04: The notion here is that the VA may hold some level of liability, even where VA medical treatment is not itself the immediate, direct and proximate cause. [00:08:44] Speaker 04: as those terms are generally understood. [00:08:47] Speaker 04: But medical treatment. [00:08:48] Speaker 04: Yes, Your Honor. [00:08:49] Speaker 01: This is in response to the Supreme Court's decision in Gardner where the statute before it said as a result of, and that was interpreted as meaning, I think, not remote. [00:09:00] Speaker 01: And then Congress, I guess, amended this statute. [00:09:03] Speaker 01: Is that right? [00:09:04] Speaker 04: Correct, Your Honor. [00:09:05] Speaker 04: The prior version of section 1151 did not include any actual cause language. [00:09:10] Speaker 04: I'm not using actual there for a type of cause, but did not include cause verbiage. [00:09:15] Speaker 04: Then the statute was amended. [00:09:17] Speaker 04: Cause verbiage was added in in two places, the general cause and the proximate cause. [00:09:22] Speaker 04: The prior 1151 had it as a result of language that would appear to correspond generally to the general cause language here. [00:09:31] Speaker 04: That's also consistent with this court's decision in Villegas bringing the Brown v. Garner as a result of language forward to cause. [00:09:38] Speaker 01: How do you respond to the government's argument that Villegas says remote consequences? [00:09:43] Speaker 01: is the standard. [00:09:45] Speaker 01: And so that's all the CIT did in this circumstance. [00:09:49] Speaker 01: Is it just followed VEGAS, which talks about remote consequences. [00:09:53] Speaker 04: So a few notes on Brown v. Gardner in that respect. [00:09:57] Speaker 04: Brown v. Gardner said as a result of language, which is now understood to be generally consistent with the general cause requirement, that language has to have some cutoff. [00:10:08] Speaker 04: It can't go to far-flung remote consequences. [00:10:12] Speaker 04: Brown v. Gardner also, though, was very clear to say that that as a result of language did not impose a proximate cause requirement. [00:10:21] Speaker 04: In fact, the Supreme Court in Brown v. Gardner said that the government's suggestion that that as a result of language should be understood as a proximate cause requirement was implausible. [00:10:31] Speaker 03: Well, right. [00:10:32] Speaker 03: But then they amended the statute. [00:10:35] Speaker 03: And the problem I'm trying to understand is, [00:10:38] Speaker 03: Since there is approximate cause requirement here, which you agree applies both to A and B, what is the problem here? [00:10:51] Speaker 03: How does that benefit you? [00:10:54] Speaker 03: How are the two cause requirements different? [00:10:57] Speaker 03: Is your theory that the negligence that's described here could be negligence of somebody [00:11:06] Speaker 03: Other than somebody in the department, that seems implausible. [00:11:10] Speaker 03: I don't understand the difference. [00:11:12] Speaker 03: What's the difference between the cause requirement and the proximal cause requirement, since you agree that both exist in the statute? [00:11:20] Speaker 04: Yes, Your Honor. [00:11:20] Speaker 04: As to the cause requirement, on the face of the statute, the general cause requirement needs to be that the disability is caused by medical treatment as one of the specific things that it could be caused by. [00:11:32] Speaker 04: Here, the medical treatment [00:11:34] Speaker 04: is a 10-year provision of medical care by Dr. Martin. [00:11:38] Speaker 03: But try to answer my question more directly. [00:11:40] Speaker 03: I'm struggling here to understand what's the difference between the cause requirement and the proximate cause requirement in practical terms. [00:11:50] Speaker 03: If the proximate cause requirement applies both to A and to B here, what difference does it make that the cause requirement might be more relaxed? [00:12:00] Speaker 04: because it's a function of who or what is the actor tied to the specific cause that we're referring to. [00:12:08] Speaker 04: When we have a general cause that's medical treatment, proximate cause is by an event. [00:12:15] Speaker 04: The two causes are linked to different things in 1151. [00:12:19] Speaker 04: The cause must be medical treatment. [00:12:22] Speaker 04: Proximate cause must be an event. [00:12:24] Speaker 04: Event and medical treatment are not necessarily the same thing. [00:12:28] Speaker 04: The medical treatment here [00:12:30] Speaker 04: is Dr. Rotman's long-term care of a veteran at the Nashville VA for a decade-long span. [00:12:37] Speaker 04: And in particular, that culminated in 2007 with Dr. Rotman telling a veteran, you need this procedure, go get this procedure done. [00:12:45] Speaker 04: That is a cause of the ultimate disability. [00:12:48] Speaker 04: That cause is the medical treatment by Dr. Rotman. [00:12:51] Speaker 04: The event not reasonably foreseeable is the proximate cause. [00:12:56] Speaker 04: The event here is the severance of the phrenic nerve. [00:12:59] Speaker 04: The event isn't [00:13:00] Speaker 04: Dr. Rotman's referral, the event is the severance of the phrenic nerve. [00:13:06] Speaker 04: Very clearly, that severance, that specific act is the proximate cause of the disability. [00:13:13] Speaker 04: So we're looking at two separate cause requirements and two separate related acts to look at. [00:13:19] Speaker 00: How were they conflated here then? [00:13:22] Speaker 04: The VA did not conflate those two acts as much as it did to conflate the two tests and applied a proximate cause standard. [00:13:30] Speaker 04: a much higher standard of causation, forcing a much more direct connection. [00:13:35] Speaker 00: Let's say they had done this correctly, or rather they had done this as a two-step process. [00:13:41] Speaker 00: Cause and then proximate cause. [00:13:43] Speaker 00: And just for purposes here, they find that there's cause and then no proximate cause. [00:13:51] Speaker 00: You would lose it. [00:13:53] Speaker 00: Correct. [00:13:54] Speaker 00: Okay, so now what they've done is they've taken proximate cause. [00:13:57] Speaker 00: What happened here is they speak about [00:14:00] Speaker 00: approximate cause in the context of cause. [00:14:04] Speaker 00: That's right. [00:14:05] Speaker 00: And so what I'm saying, what I'm thinking is what happens if we look at this and look at the analysis that they applied. [00:14:12] Speaker 00: They applied approximate cause analysis and we say, let's get this analysis and set it aside. [00:14:18] Speaker 00: And by the way, this was correct. [00:14:21] Speaker 00: Then you lose. [00:14:25] Speaker 00: I mean, we may declare that there was conflation. [00:14:29] Speaker 00: and maybe speak about the two different causes, and I think you've correctly stated the two basicists, but you would still lose. [00:14:41] Speaker 00: Or why wouldn't that be harmless error? [00:14:44] Speaker 04: It wouldn't be harmless error here because there is no factual finding that there is no causal link, that the VA medical treatment is not the cause [00:14:56] Speaker 00: Perhaps I can help you. [00:14:58] Speaker 00: So the unforeseeability issue goes to proximate cause. [00:15:02] Speaker 04: Yes, Your Honor. [00:15:04] Speaker 00: Below, they only address cause, the negligence. [00:15:07] Speaker 00: Correct, Your Honor. [00:15:07] Speaker 00: They didn't address foreseeability. [00:15:09] Speaker 00: So it's not harmless error because the question of foreseeability proximate cause is still out there hanging. [00:15:16] Speaker 04: Yes, Your Honor. [00:15:17] Speaker 04: And that's why, at least as to the statutory argument, Mr. Ellis is asking for this to be vacated and remanded [00:15:23] Speaker 04: so that the second proximate cause analysis as to reasonable foreseeability could in fact be conducted. [00:15:30] Speaker 01: They would also have to conduct the cause analysis as well, right? [00:15:34] Speaker 01: We can't do that. [00:15:36] Speaker 01: So one of the things that I find really difficult is clearly the statute does say cause and proximate cause. [00:15:43] Speaker 01: Treat them as different things. [00:15:45] Speaker 01: We've got Viegas that says those are different things. [00:15:47] Speaker 01: So how are they different? [00:15:50] Speaker 01: How do you show cause and how do you show proximate cause? [00:15:54] Speaker 01: I mean, because remote consequences, going on now, but remote consequences seems to be something that perhaps both require, but that doesn't necessarily make them the same. [00:16:05] Speaker 04: Correct, Your Honor. [00:16:06] Speaker 04: There is always a concern in law as to how to apply a general cause requirement. [00:16:11] Speaker 04: Clearly, by using cause and proximate cause, both in the context of the same statutory section, Congress intended the cause language to be broader than pure proximate cause. [00:16:22] Speaker 04: So cause is necessarily something broader than just proximate direct immediate cause. [00:16:27] Speaker 03: Yeah, but if they're being applied to the same thing, it doesn't make any difference whether the cause requirement is more liberal than the proximate cause requirement. [00:16:35] Speaker 03: If you have to have proximate cause anyway, then the fact that the two have been conflated is, as Judge Raina was suggesting, harmless error. [00:16:46] Speaker 03: But you seem to be saying that the cause and the proximate cause requirement [00:16:51] Speaker 03: are being applied to different actions, right? [00:16:55] Speaker 03: Yes, Your Honor, respectfully, they don't apply... What are the different actions that they apply to it? [00:17:00] Speaker 03: In the case of negligence, it's the same action, right? [00:17:03] Speaker 04: In the case of negligence, it may actually be the same action, but even that is not necessarily the same action, because the one action may be medical treatment in a broader sense. [00:17:13] Speaker 04: The specific proximate cause may be a specific act of negligence within the course of the broader [00:17:20] Speaker 04: medical treatment. [00:17:20] Speaker 01: So for example, if it was the recommendation of the treatment for the cause prong, but for the approximate cause, it might be negligence by Dr. Hall? [00:17:35] Speaker 04: Correct, Your Honor. [00:17:36] Speaker 04: It may be the actual specific actor who may no longer be an actual VA employee is ultimately negligent, but that is still in some way tied back to fault of the VA. [00:17:47] Speaker 04: The general cause is more the general medical treatment. [00:17:51] Speaker 04: This court has not had an opportunity to fully distinguish those. [00:17:55] Speaker 04: There are a couple helpful Veterans Court cases, though. [00:17:58] Speaker 04: In particular, the Contu case there can be helpful as the Contu case involved a referral. [00:18:05] Speaker 00: So doesn't Vegas do a good job of doing that as well? [00:18:08] Speaker 00: I mean, we have a situation where you have a VA receiving medical help. [00:18:12] Speaker 00: You have cause. [00:18:14] Speaker 00: and he grabs onto the grab rail, falls down, and then you have a foreseeability issue, and that's the proximate cause issue. [00:18:24] Speaker 00: Doesn't Viegas kind of spell out the differences? [00:18:27] Speaker 04: As a general matter, yes. [00:18:28] Speaker 04: Although Viegas generally concludes his analysis at the end of the first prong, clarifying that it need not be a direct causation prong. [00:18:37] Speaker 04: But Viegas does help in clarifying that these are two distinct causal requirements that can be tied to two distinct [00:18:44] Speaker 04: events or acts. [00:18:47] Speaker 04: One is the proximate cause act. [00:18:49] Speaker 04: The other, the broader general cause, is the broader medical treatment. [00:18:53] Speaker 00: Your contention is what happened here is that the proximate cause analysis was used masquerades as the cause analysis. [00:19:04] Speaker 04: Correct, Your Honor. [00:19:05] Speaker 04: And as a result, we would need to go back to look to the specific proximate cause, the severance of the frontal nerve, to see if that is [00:19:12] Speaker 03: appropriately characterized as not reasonably foreseeable and we would need to validate... I'm still not understanding what different act the two tests are being applied to in this case. [00:19:21] Speaker 03: The proximate cause test says you have to look to the negligence in the event not reasonably foreseeable and find that that is the result of departmental hospital care medical or surgical treatment, right? [00:19:39] Speaker 03: Yes, Your Honor. [00:19:42] Speaker 03: But the cause requirement seems to apply to the same event, that is, hospital care, medical or surgical treatment. [00:19:49] Speaker 04: So the proximate cause here, Your Honor, if we can set aside subsection A, let's just focus on subsection B, perhaps it will ease some of the confusion. [00:19:59] Speaker 04: Subsection B would then read, the proximate cause of the disability or death was an event not reasonably foreseeable. [00:20:05] Speaker 04: There is nothing in 1151A1 subsection B [00:20:09] Speaker 04: that ties that event not reasonably foreseeable to anything specifically happening at, by, or at the behest of the VA. [00:20:18] Speaker 04: The general cause element at the beginning 1151A1 is specifically tied to medical treatment furnished... Well, there happens to be some connection to the VA. [00:20:30] Speaker 03: If this individual on his own went to a private doctor and suffered an event that was not reasonably foreseeable, the VA wouldn't be responsible for that, right? [00:20:40] Speaker 04: The VA would not be responsible as a result of 1151A1's general cause requirement because the VA would not have generally caused the disability. [00:20:51] Speaker 04: We wouldn't even need to get to 1151A1B's event not reasonably foreseeable test. [00:20:57] Speaker 04: We're looking at two very distinct causal elements. [00:21:00] Speaker 04: The one is, are we under the umbrella of the VA? [00:21:03] Speaker 04: That's the general cause. [00:21:05] Speaker 04: The specific cause is, what exactly now happened? [00:21:09] Speaker 04: Is that an event not reasonably foreseeable? [00:21:11] Speaker 04: Here, that event happened outside of the VA for the proximate cause. [00:21:17] Speaker 04: The general cause, we are under the umbrella of medical treatment being provided by the VA over a period of time. [00:21:22] Speaker 04: Your Honor, I see I'm well past my time. [00:21:25] Speaker 01: I just wanted to say one thing, which is I think I misspoke when I gave an example where there would be negligence would be Dr. Hall's negligence in the surgery. [00:21:34] Speaker 01: That doesn't seem to comport with what would be required by 1151A, because it says carelessness, negligence, and such on the part of the department. [00:21:48] Speaker 01: So do you agree that I may have misspoke there? [00:21:50] Speaker 04: I believe so. [00:21:52] Speaker 04: If I misspoke in my response, I tried in my response to note that [00:21:55] Speaker 04: if there was an agent-type situation. [00:21:57] Speaker 04: So you may have a scenario where there is an agency relationship created with a private physician such that it would still be considered fault on the part of the department. [00:22:06] Speaker 04: But again, for our purposes, this all, I think, is much clearer if we focus on 1151A1B, event not reasonably foreseeable, as the role of the VA [00:22:18] Speaker 04: is not specifically specified or tied to that proximate cause. [00:22:22] Speaker 03: So what you're saying is that the proximate cause and the cause require basically the same with respect to A but not with respect to B. The actor involved in both for A would be the VA for both for the general cause and the proximate cause. [00:22:40] Speaker 03: The actor involved for B need not be... Is my statement correct or incorrect? [00:22:45] Speaker 03: There's no difference between cause and proximate cause insofar as A is concerned. [00:22:51] Speaker 04: I disagree. [00:22:51] Speaker 04: There's still two separate requirements. [00:22:55] Speaker 04: And you may be looking at two. [00:22:57] Speaker 04: And in particular, the Villegas case, as Judge Raina pointed out a moment ago, can be helpful there because the slip and fall still happened within the VA facility. [00:23:07] Speaker 04: Still could be an A1A or A1B scenario, but we're looking at [00:23:14] Speaker 04: General cause was this part of the medical treatment. [00:23:17] Speaker 04: Now let's look at specifically what happened. [00:23:20] Speaker 04: Who is directly at fault? [00:23:23] Speaker 04: You may not necessarily have the same actor. [00:23:25] Speaker 04: They are not just a single inquiry. [00:23:28] Speaker 04: OK. [00:23:28] Speaker 03: All right. [00:23:29] Speaker 03: You're well over your time. [00:23:30] Speaker 03: We'll give you two minutes for rebuttal. [00:23:31] Speaker 03: Thank you, Your Honor. [00:23:36] Speaker 03: Mr. Prehan. [00:23:40] Speaker 02: Good morning. [00:23:40] Speaker 02: May it please the court. [00:23:41] Speaker 02: But the statute doesn't apply to the remote consequences of VA conduct. [00:23:45] Speaker 02: There's no dispute in that regard. [00:23:48] Speaker 02: Regardless of which prong you look at, regardless of whether or not you're talking about causation or proximate cause, it doesn't apply where the actions being complained of are the remote consequences of what the VA did. [00:23:59] Speaker 02: And that's what the Board and the Veterans Court found here. [00:24:03] Speaker 02: That's the end of the inquiry. [00:24:05] Speaker 00: That's square with VIECAS then. [00:24:07] Speaker 00: It does, absolutely. [00:24:08] Speaker 00: That was a question in VIECAS, right? [00:24:12] Speaker 00: you have a veteran inside a VA facility receiving treatment and he goes to the bathroom and grabs a grab rail and falls down and gets injured. [00:24:26] Speaker 00: The question was whether the failure of the grab rail was cause and was it foreseeable or not. [00:24:36] Speaker 02: Right. [00:24:37] Speaker 02: And what the court said is that in that case, that did meet the causation element. [00:24:42] Speaker 02: But that causation, even though it doesn't say approximate cause, causation nonetheless doesn't extend to the remote consequences of the VA's conduct. [00:24:50] Speaker 02: That was the central holding in Vieques. [00:24:53] Speaker 00: But the VA argued in that case, we're not liable because we have, it's not foreseeable that this grab reel is going to fall, number one. [00:25:02] Speaker 00: And number two, that's not part of his medical treatment. [00:25:05] Speaker 00: Right, that's right. [00:25:08] Speaker 00: So, remote as it is, under B, there's approximate cost. [00:25:22] Speaker 02: Well, but what the court said is that it wasn't a remote consequence in that case in Villegas. [00:25:29] Speaker 02: So it did therefore fall within the causation part of the statute. [00:25:33] Speaker 00: Yes, but it still laid out the two different elements. [00:25:35] Speaker 00: It did. [00:25:36] Speaker 00: It did. [00:25:36] Speaker 00: Absolutely. [00:25:36] Speaker 00: And said in this case, it's not remote. [00:25:38] Speaker 00: We're still going to find it under A. But B exists, and B exists for other situations, and that's what we're looking at here. [00:25:46] Speaker 02: Right. [00:25:46] Speaker 02: But you still have to meet causation. [00:25:49] Speaker 02: You still have to show causation, and that means [00:25:51] Speaker 02: If what we're talking about is a remote consequence, it doesn't fall within the ambit of the statute. [00:25:55] Speaker 01: And that's what the Veterans Court said here, regardless of whether or not... So our job is to see whether Veterans Court applied the right law, right? [00:26:02] Speaker 01: I mean, that's mostly our job. [00:26:03] Speaker 05: Yes. [00:26:04] Speaker 01: So what do you... I understand what you're saying. [00:26:07] Speaker 01: Maybe if the court had said, it's remote, therefore there's no cause, and it stopped right there, that could be the end of it. [00:26:14] Speaker 01: But how do you deal with footnote eight, the citation to Metropolitan Edison? [00:26:19] Speaker 01: And the other statements that seem to use language that comes from the proximate cause standard. [00:26:26] Speaker 02: Right. [00:26:27] Speaker 02: And that's because that language applies to the causation aspect as well. [00:26:31] Speaker 02: And all the Veterans Court was saying in that footnote is, with respect to remote consequences, that idea applies whether or not you're talking about proximate cause or whether or not you're talking about cause. [00:26:42] Speaker 02: And that's what Viega said based on Gardner. [00:26:44] Speaker 02: That's all the Veterans Court was saying in that. [00:26:46] Speaker 02: And when it talked about attenuation, [00:26:47] Speaker 02: That applies regardless of whether or not you're talking about cause or proximate cause. [00:26:51] Speaker 02: If the event is too attenuated from the VA conduct, it can't fall within either. [00:26:57] Speaker 01: What about the citation to Metropolitan Edison, which is talking about proximate cause in order to understand what cause is? [00:27:04] Speaker 02: Right, but it's talking about the timing aspect and how far removed the event is. [00:27:11] Speaker 02: And that aspect of proximate cause is part of the causation element. [00:27:15] Speaker 01: Your brief confused me a little bit, because your alternative argument is that cause and proximate cause are, in fact, the same thing. [00:27:24] Speaker 01: And I think to myself, well, gosh, if anything, that suggests to me that maybe the court below was confused, because I don't think this statute intends them to be the same thing. [00:27:34] Speaker 02: Well, they are the same thing with respect to the remote consequences, and that's our point. [00:27:38] Speaker 02: Now, they are different in other respects. [00:27:41] Speaker 02: Are they the same under A? [00:27:43] Speaker 02: Well, no, they're different, actually. [00:27:45] Speaker 02: They're different in the sense that causation doesn't include a fault element. [00:27:50] Speaker 03: Approximate cause language, that is... But if there has to be approximate cause, what difference does it make that the causation element may be a LUSA requirement? [00:28:00] Speaker 02: Right, well, and that was the argument, an additional argument that we made in our brief. [00:28:03] Speaker 02: We took their argument to be that they could establish approximate cause as well, and we said, well, it doesn't make a difference here because you can't... But how can it be that for A, [00:28:12] Speaker 02: that you don't have to have proximate cause. [00:28:15] Speaker 03: I mean, surely you do have to have traditional tort proximate cause flowing from the VA's negligence, right? [00:28:22] Speaker 02: Well, the difference is with respect to the fault element, and that's what Gardner said, right? [00:28:26] Speaker 02: I mean, Gardner was interpreting the prior version of the statute, but what this court has said is that the prior version and the current version are the same in terms of A, in terms of causation. [00:28:36] Speaker 01: Not in terms of cause, just cause, not 1A, which is negligence. [00:28:40] Speaker 02: A1 is negligence, that's right. [00:28:42] Speaker 02: That's what was added in the amendment after Gardner and it was designed to address the fault issue. [00:28:46] Speaker 03: Yeah, but I don't think you're addressing my question. [00:28:49] Speaker 03: My question is with respect to A, which deals with carelessness and negligence, proximate cause is specifically a requirement in the statute. [00:28:58] Speaker 03: And what difference does it make whether the cause requirement as to A [00:29:04] Speaker 03: is different from proximate cause, because there's a specific proximate cause requirement here. [00:29:08] Speaker 02: Right. [00:29:09] Speaker 02: And that was an argument we made in our brief as well, because we thought that they were attempting... So you agree with that? [00:29:13] Speaker 02: Yes, yes. [00:29:14] Speaker 02: Yes, we do agree with that. [00:29:16] Speaker 02: All right. [00:29:16] Speaker 02: So the question is, is it different with respect to B? [00:29:20] Speaker 02: Right. [00:29:21] Speaker 02: And I think the answer is yes. [00:29:23] Speaker 02: So what the statute contemplates is a situation where the VA does a surgery, does everything right, but a side effect occurs that isn't typical and can't be reasonably foreseen. [00:29:33] Speaker 02: So in essence, it contemplates a situation where there's no fault on the VA, but something unforeseeable occurs. [00:29:41] Speaker 02: But even in that situation, it doesn't cover the remote consequences of the VA's conduct. [00:29:46] Speaker 03: Well, it has to be a test there that is different from the traditional proximate cause test, because proximate cause says the consequence has to be foreseeable. [00:29:55] Speaker 03: And here, the statute is saying specifically is there's liability if it's not foreseeable. [00:30:00] Speaker 02: Right, right. [00:30:01] Speaker 02: Exactly. [00:30:01] Speaker 02: That's right. [00:30:03] Speaker 02: But the key point here is that what the Veterans Court said is that what we have here is a situation where what occurred is a remote consequence of VA's conduct, regardless of whether or not you're talking about causation or proximal cause. [00:30:17] Speaker 02: So the test for B is remote consequence. [00:30:20] Speaker 03: No, well... Proximal cause. [00:30:22] Speaker 03: It can't be proximal cause because proximal cause has within it notions of foreseeability. [00:30:28] Speaker 03: and B, specifically imposes liability when there's no foreseeability. [00:30:32] Speaker 03: Right, but you still have to get through the causation element before you get to B. Yeah, but the causation element can't be the same as proximate cause, because it simply makes no sense to talk about proximate cause in relation to unforeseen consequences. [00:30:45] Speaker 02: But it is the same with respect to proximate cause when you talk about remote consequences. [00:30:51] Speaker 02: It is. [00:30:53] Speaker 02: That's what the Supreme Court said in Gardner and the court said in Villegas. [00:30:58] Speaker 02: that causation, that the statute is never intended to cover a situation where you're talking about remote consequences of what the VA did. [00:31:07] Speaker 02: And that's the situation we have here. [00:31:08] Speaker 02: And that's the end of the inquiry. [00:31:10] Speaker 03: Well, suppose there was no negligence at performing the maze operation, OK? [00:31:17] Speaker 03: And let's assume that the VA said, go have a maze procedure, and that as a result of that, VA recommendation has the maze procedure [00:31:26] Speaker 03: and there is an unforeseeable consequence of the nerves being severed. [00:31:32] Speaker 03: Why isn't that, doesn't that satisfy the cause requirement of the statute? [00:31:37] Speaker 02: Well, in that situation, it may be too remote. [00:31:40] Speaker 02: You'd have to address the question of, is this a remote consequence of what the VA did? [00:31:44] Speaker 02: Well, that's what I'm asking. [00:31:46] Speaker 03: In my hypothetical, there's a direct chain of causation between the recommendation to have the MASE procedure, the performance of the MASE procedure, and the injury. [00:31:55] Speaker 03: There's no intervening cause, such as negligence by the surgeon performing the maze procedure. [00:32:02] Speaker 02: Right. [00:32:02] Speaker 02: So that would be a much closer case. [00:32:04] Speaker 02: You'd have to meet the other elements of the statute as well, obviously. [00:32:07] Speaker 02: The question of whether or not this is hospital care, medical, or surgical treatment, or examination, for example. [00:32:13] Speaker 02: But your hypothetical would be a lot closer situation. [00:32:16] Speaker 02: It may not, under your hypothetical, be a remote consequence of VA conduct. [00:32:19] Speaker 02: But that's not what we have here. [00:32:23] Speaker 02: a situation where Mr. Oles asked about the MACE procedure. [00:32:26] Speaker 02: He discussed multiple options and multiple recommendations with the VA. [00:32:30] Speaker 02: He then went to his private doctor and discussed options, and his private doctor referred him to the surgeon who ultimately did the surgery. [00:32:40] Speaker 02: That is simply too remote to fall within the eminent of the statute. [00:32:44] Speaker 03: I don't see any finding by the board or the Veterans Court that [00:32:50] Speaker 03: the VA wasn't the cause of his having the MAIDS procedure done. [00:32:55] Speaker 03: Am I mistaken? [00:32:57] Speaker 02: I don't think, I think what they said is... Well, by saying it's too far remote, I think they were saying that yes, it wasn't the cause. [00:33:16] Speaker 00: They don't make a foreseeability finding. [00:33:19] Speaker 00: Are you saying that they did? [00:33:20] Speaker 00: No, they didn't. [00:33:22] Speaker 00: OK. [00:33:23] Speaker 00: So then there's no finding as to under B whether the event is foreseeable or not. [00:33:29] Speaker 00: That's right. [00:33:31] Speaker 02: No, I will say we didn't understand Mr. Olson to be making that argument in his brief to this court, but he seems to be making it now. [00:33:39] Speaker 03: He seems to have said that they don't have a claim under A, that the Veterans Court said negligent referral, you didn't preserve that claim. [00:33:48] Speaker 03: So there's no claim under A. It's a B claim. [00:33:50] Speaker 02: He does seem to be saying that now. [00:33:51] Speaker 00: We took his brief to be focused on or to at least indicate that his claim was under A. So let's assume that your opponent is correct and the VA did conflate 1 and A or cause, approximate cause. [00:34:12] Speaker 00: Don't we still have a harmless error situation here if we're able to separate? [00:34:16] Speaker 00: If the three of us can separate and say, OK, well, [00:34:19] Speaker 00: You applied approximate cause under the guise of cause, but the approximate cause finding is correct, and therefore the veteran still loses because there's been harmless error. [00:34:33] Speaker 00: Right. [00:34:33] Speaker 00: Why would we send it back if we determined that the approximate cause element was not satisfied? [00:34:40] Speaker 02: Right. [00:34:42] Speaker 02: We look at it a little bit differently. [00:34:44] Speaker 02: We obviously don't think there was error here. [00:34:47] Speaker 02: Another way to look at it is to say that because we're talking about remote consequences here, it doesn't matter whether or not the VA applied approximate cause or causation standard. [00:34:58] Speaker 00: But that factual finding is positive. [00:34:59] Speaker 00: What appears to be the conflation is that you do address fault under cause. [00:35:10] Speaker 02: Well, no. [00:35:12] Speaker 02: The Veterans Court certainly didn't address fault under cause. [00:35:16] Speaker 02: They just talked about the remote aspect of what occurred here. [00:35:20] Speaker 02: And this court has said that cause doesn't include a fault element. [00:35:25] Speaker 02: That's the difference between cause and proximate cause, at least with respect to a commission case. [00:35:30] Speaker 02: In a mission case, in the Roberson case, this court did say the fault is required with respect to causation. [00:35:38] Speaker 01: I want to ask you about the too remote language. [00:35:44] Speaker 01: referred to it being too remote, also said in that very same sentence I think you were referring to in its opinion that they were intervening in independent actions by non-VA actors, and then there was also some suggestion of languages about being attenuated. [00:35:59] Speaker 01: I mean, how does that all relate? [00:36:01] Speaker 01: Are those different things? [00:36:02] Speaker 01: Are those the same thing? [00:36:04] Speaker 01: I think they might be different, but I want to know your view. [00:36:06] Speaker 02: Well, they all relate to the remote consequences of VA conduct. [00:36:11] Speaker 02: And that phrase [00:36:14] Speaker 02: is true regardless of whether or not we're talking about approximate cause or causation. [00:36:17] Speaker 02: And the word attenuated can be used in either as well. [00:36:21] Speaker 01: Do you think independent actions by other folks, that that falls within the idea generally of remote? [00:36:28] Speaker 02: Right. [00:36:28] Speaker 02: Absolutely. [00:36:29] Speaker 02: Sure. [00:36:30] Speaker 02: If you have multiple actors intervening in a chain of events, yes, then that is remote. [00:36:35] Speaker 02: That takes it far removed from what the VA did. [00:36:40] Speaker 03: There could be multiple actors. [00:36:41] Speaker 03: the original recommendation for the MASE procedure could have been what led to halving the MASE procedure and halving the MASE procedure may have resulted in this perhaps allegedly unforeseen consequence of the nerve circuits. [00:36:57] Speaker 02: Well, right, but that's why we have a limitation on what cause means. [00:37:02] Speaker 02: As the Veterans Court said, in the philosophical sense, [00:37:05] Speaker 02: the causes of an event go back to the dawn of human events. [00:37:08] Speaker 02: So, you know, we could say that the cause goes back thousands of years. [00:37:12] Speaker 03: But that's not my hypothetical. [00:37:14] Speaker 03: My hypothetical is they say, have the Maze procedure, he has the Maze procedure because the VA recommended it. [00:37:23] Speaker 03: And having the Maze procedure results in this unforeseen consequence of nerve severance. [00:37:29] Speaker 02: But that's a closer case. [00:37:30] Speaker 02: I would certainly concede that. [00:37:32] Speaker 02: But that's not this case. [00:37:34] Speaker 02: Here we have a number of intervening events. [00:37:36] Speaker 01: And in fact, Mr. Aulis himself said... So the intervening events themselves, even if in Mr. Aulis' mind that first referral was what caused him to go and get the procedure, it wouldn't matter because there's intervening events? [00:37:51] Speaker 02: It feels like that might be a different element than... Right. [00:37:54] Speaker 02: The intervening events obviously have to relate to the ultimate final action, right? [00:38:00] Speaker 02: And here, if you look at page 201 of the record, [00:38:03] Speaker 02: Mr. Oles himself said that Dr. Teague, his private physician, referred him to Dr. Hall, his surgeon. [00:38:09] Speaker 02: So we don't have a situation where it was the DA at referral that actually caused him to go to the heart doctor. [00:38:16] Speaker 01: As you might be able to tell, I'm struggling a little bit with the idea of what standard did the court apply. [00:38:22] Speaker 01: Right. [00:38:23] Speaker 01: And footnote eight, it says the Federal Circuit's Vegas decision addresses causation and constitutes a binding [00:38:30] Speaker 01: precedent that is consistent with the general interpretation of proximate cause. [00:38:34] Speaker 01: How is that not saying that Viagas interprets cause as meaning the same thing as proximate cause? [00:38:41] Speaker 02: Remember what the court is talking about in this footnote is remote consequence. [00:38:45] Speaker 02: It actually says remote consequence in the footnote. [00:38:47] Speaker 02: All the Veterans Court is saying is that remote consequences can't meet proximate cause either. [00:38:53] Speaker 02: In other words, it can't meet causation and it can't meet proximate cause. [00:38:56] Speaker 02: That's all the Veterans Court is saying in that footnote. [00:39:00] Speaker 02: But that aspect of proximate cause, the remote consequence aspect, is true with respect to causation. [00:39:06] Speaker 02: And that's what this court held in the VA goes. [00:39:09] Speaker 01: You don't think that this footnote shows there's confusion? [00:39:12] Speaker 02: No. [00:39:13] Speaker 02: No. [00:39:13] Speaker 02: All they're talking about is remote consequences there. [00:39:18] Speaker 02: OK. [00:39:18] Speaker 02: Anything else? [00:39:19] Speaker 03: All right. [00:39:20] Speaker 03: Thank you, Mr. Preenaar. [00:39:21] Speaker 03: Thank you. [00:39:22] Speaker 03: Mr. Schoenhart, you have two minutes here. [00:39:29] Speaker 03: Thank you, Your Honor. [00:39:32] Speaker 04: It would appear that the VA is attempting to impose a broad remote consequences test on anything to do with VA care, regardless of the statute. [00:39:45] Speaker 04: Whether it's the prior version of Section 1151 or the current version of Section 1151, the VA would say, let's ignore whatever the statute is and just have a general inquiry into, are we dealing with a situation of remote consequences? [00:39:59] Speaker 04: Although I acknowledge the remote consequences language out of Brown v. Gardner in addressing the prior 1151, the role of this court is to apply the current version of section 1151, which has two causation. [00:40:10] Speaker 03: Do you think it's not a remote consequences test here? [00:40:13] Speaker 04: This court in Vegas noted that the Brown v. Gardner remote consequences language would appear to apply to the current causal language. [00:40:22] Speaker 04: That doesn't mean it's a substitute for looking to the statute. [00:40:26] Speaker 04: It does not forgive the Veterans Court for [00:40:29] Speaker 04: ignoring what is cause versus what is proximate cause and attempting instead to use remote consequences as a vague proxy for this actual statutory test. [00:40:39] Speaker 03: When looking to whether there were actually... But that's the test that Brown and Gardner and Villegas gave us, is remote consequence. [00:40:47] Speaker 04: I would view that as a... that is an outside bound. [00:40:50] Speaker 04: The test is cause. [00:40:52] Speaker 04: Remote consequences is an outside bound. [00:40:54] Speaker 04: Here, Your Honor, you place to the VA a pretty simple hypothetical. [00:40:58] Speaker 04: But that hypothetical is in fact the fact pattern of this case. [00:41:02] Speaker 04: Veteran goes to VA, VA provides a recommendation to veteran and says, go get this procedure done. [00:41:09] Speaker 04: Veteran gets that procedure done. [00:41:11] Speaker 04: The result is disability. [00:41:13] Speaker 04: That is very direct. [00:41:15] Speaker 04: There are not a whole bunch of intervening steps. [00:41:18] Speaker 04: The VA is careful to point out that there may be some question about who are the specific doctors to whom he has referred. [00:41:26] Speaker 04: The focus here is [00:41:27] Speaker 04: What is the medical treatment? [00:41:29] Speaker 04: What is the course of medical treatment? [00:41:31] Speaker 04: He was referred for the procedure. [00:41:34] Speaker 04: He went and got the procedure. [00:41:37] Speaker 04: It is less important which other people he may have asked, okay, is this the right thing? [00:41:42] Speaker 00: Who else he's talking to? [00:41:43] Speaker 00: The referral itself is not necessarily require finding a liability on the part of the VA. [00:41:52] Speaker 00: I mean, the negligence, if there's negligence, has to flow back to the VA. [00:41:57] Speaker 00: If we were looking... That's a proximate cause issue. [00:42:00] Speaker 04: The fault. [00:42:01] Speaker 04: Yes, Your Honor. [00:42:01] Speaker 04: If we were looking for 1151A1A negligence, that would have to flow back to the VA. [00:42:06] Speaker 04: 1151A1B, event not reasonably foreseeable, that does not need to flow back to the VA. [00:42:12] Speaker 03: We're just looking at the... Of course it has to flow back to the VA and that the VA has some role in what happened. [00:42:21] Speaker 04: Well, Your Honor, that's the general cause element. [00:42:24] Speaker 04: Was this caused by medical treatment of the VA? [00:42:27] Speaker 04: Yes, in fact, it was. [00:42:28] Speaker 04: Dr. Rotman, as part of a 10-year span of medical care for atrial fibrillation, said, go get this procedure done. [00:42:34] Speaker 04: That's exactly what the veteran did. [00:42:36] Speaker 04: OK. [00:42:36] Speaker 04: Thank you, Mr. Schaffer. [00:42:37] Speaker 04: Thank you. [00:42:38] Speaker 04: Thank both counsel. [00:42:38] Speaker 04: The case is submitted.