Veteran files intent to sue, alleges he got HIV from VA facility in Miami

Florida trial law firm Leesfield & Partners ( is featured in the following article…


A U.S. Army veteran became the first in Florida to file a notice that he intends to sue the Department of Veteran Affairs claiming he contracted HIV from a colonoscopy at its Miami hospital after the VA revealed that thousands of patients were treated with unsterile medical equipment.

“I served my country for 13 years in the U.S. Army. They promised to take care of me, but instead they infected me with HIV,” Juan Rivera told the Daily Business Review — Monday before starting his night shift, driving a semi-trailer for the U.S. Postal Service. “I feel like the VA has issued me a death sentence.”

Rivera spent most of his adult life working for the federal government either in the military or in civil service. Like many his age, Rivera had to undergo a colonoscopy. The 55-year-old North Miami man turned to the VA’s Bruce W. Carter Medical Center in Miami for the routine procedure in early 2008.

He filed a Form 95 claim on July 20 for damages against VA, alleging its Miami facility failed to properly clean and maintain its medical equipment, and failed to adopt and implement proper policies, protocols and procedures that would have prevented the infection.

The VA has revealed that thousands of procedures were performed on veterans with potentially contaminated endoscopic equipment.

Unlike when the disease first surfaced in the early 1980s, the majority of those who contract HIV now can control the disease by taking antiretroviral medications. An estimated one million people are currently living with the AIDS virus in the United States, with approximately 40,000 new infections occurring each year.

The VA first revealed in December that procedures were performed at its Murfreesboro, Tenn. with unsanitized equipment, potentially exposing patients to HIV and hepatitis. The VA now says about 10,000 patients at its hospitals in Miami, Tennessee, and Augusta, Ga., may have been exposed to blood-borne diseases, going as far back as 2003.

Under the Federal Tort Claims Act, Rivera must notify the government by submitting a Form 95 claim six months before he files a federal lawsuit.

Rivera’s attorney, Ira Leesfield of Leesfield & Partners in Miami, says he knows of at least two other Orlando-area veterans considering filing claims against the VA for contracting hepatitis through their colonoscopies at the Georgia VA facility.

Two tests have confirmed Rivera, who is married with children, has HIV.

“What happened here in Miami is just a cookie-cutter of what happened in the other facilities. What it is is sloppiness, hurriedness, neglect, people just not caring,” Leesfield said. “The idea of sterilizing instruments after each procedure is standard medical practice.”

The VA, according to its Web site, said after a review this year, inspectors “found that a tube that was supposed to be cleaned after each colonoscopy was instead cleaned at the end of each day.”

According to the VA’s Web site, five veterans have tested positive for HIV in Miami, eight for the hepatitis C virus and three for the hepatitis B virus.

At the Tennessee facility, one veteran tested positive for HIV, seven veterans tested positive for hepatitis B and 25 tested positive for hepatitis C. In Georgia, two veterans have tested positive for HIV, two for hepatitis B and four for hepatitis C.

Katie Roberts, a spokeswoman for the Department of Veteran Affairs in Washington, said epidemiology reports have not been completed so there is no confirmation that veterans contracted HIV because of inadequate VA procedures.

Roberts said the VA is trying to be diligent in contacting all patients who had colonoscopies at the three facilities. “VA has informed and treated all potentially affected veterans, regardless of cause, because they are our patients,” she said.

The VA contacted 2,446 veterans who had colonoscopies or endoscopic procedures at the Miami hospital, warning them of possible exposure to infectious diseases from unsterile colonoscopy equipment.

The VA earlier this year conducted a nationwide investigation of its 153 medical centers. It reported in June that fewer than half of VA facilities targeted by surprise inspections had proper training or guidelines in place.

The reported colonoscopy sterilization failures come in the wake of the revelations of unsanitary conditions at Walter Reed Army Medical Center in Washington, D.C.

Leesfield, who is a veteran, said that for too long his fellow veterans have endured substandard care.

“This is a question of training. It’s a question of cost-cutting. It’s really a question of diligence,” Leesfield said. “There has to be a different way to approaching military medicine and veterans medicine in particular.”

Rivera, who served in the U.S. Army from 1973 to 1989, is outraged and frightened.

“Of note, is the expression of fear, anxiety and apprehension and uncertainty that goes with contracting a life-threatening a disease,” Leesfield said.

Leesfield applauded his client’s willingness to take on the U.S. government — especially hard for a man who has a military background. If Rivera’s claim is not settled and he goes to court, his attorney expects his client’s character to be assailed by the government’s attorneys.

But the VA has already responded to Rivera’s claim with a letter. Usually, Form 95s go unanswered until a lawsuit is filed, said Mark A. Sylvester, a partner in the Leesfield firm who specializes in Federal Tort Claims Act cases.
John Pacenti can be reached at (305) 347-6638.

“I think they understand they have a serious problem,” Leesfield said.

In the meantime, Rivera is coming to grips with his HIV diagnosis.

“He has to rethink his own life,” Leesfield said.

Ira Leesfield photo by Jill Kahn