The U.S. Department of Justice is asking a judge to dismiss a lawsuit brought by a group of veterans who said they suffered emotional distress after learning their dentist at the Tomah VA Medical Center might have exposed them to HIV and hepatitis by using unsterilized instruments.
In November 2016, VA officials learned that Thomas Schiller had been re-using drill bits, in violation of VA policy, and not properly sterilizing them for more than a year. The VA notified 592 patients of the possible exposure and urged them to get tested for the blood-borne diseases.
According to the class-action suit filed in November, some patients were forced to wait another six months for testing to make sure they weren’t infected.
No veterans were found to be infected, but the suit seeks compensation for pain and suffering claiming they “were forced to consider that they may have been infected with deadly viruses, may die as a result of having been infected, and/or may have unknowingly infected their loved ones with deadly viruses.”
In a brief filed Friday, Assistant U.S. Attorney David Conway argues that under Wisconsin law, plaintiffs must prove they were exposed to a contaminated source — as opposed to a potentially contaminated one — in order to prevail.
“Because plaintiffs have not alleged that the dental drill bits at issue were contaminated, the Court must dismiss their claims as a matter of law,” the brief states.
The government goes on to argue the case lacks class-action status because the law requires plaintiffs to exhaust all other remedies before filing a lawsuit. The complaint indicates that only the six plaintiffs filed administrative claims against the VA.
According to the lawsuit, in December 2015 Schiller’s dental assistant reported his re-use of unsterile drill bits to the lead hygienist who told the assistant to instead report the infractions to the chief of dental services. The assistant, who had previously reported Schiller for poor hygiene and appearing to sleep at his desk, did not report the unsterilized drill bits for fear of retaliation.
Meanwhile, managers signed off on Schiller’s evaluation, citing “no concerns regarding competency,” according to the complaint.
Schiller wasn’t caught until mid-October when a substitute hygienist witnessed him use a personal bur and reported it to another dentist.
According to an investigation by the VA’s Office of Inspector General, Schiller used unsterilized burs on approximately 112 of the 592 patients he treated during his year with the VA and used other personal supplies on about 243 of them.
Schiller’s clinical privileges were revoked, and he was reported to regulators in Texas, where he was licensed in 1996. The OIG report recommended unannounced inspections of the dental clinic and training for staff on when and how to report issues relating to patient safety.
The government also is asking the court to put proceedings on hold until the judge rules on the request to dismiss the case. Conway argues that looking at test results of the other unnamed veterans would constitute an invasion of their privacy which would be unnecessary if the case doesn’t move forward.
William Rieder, the attorney representing the plaintiffs, declined to comment.
Last year, the government agreed to a $2.3 million settlement with the family of Jason Simcakoski, a former Marine who died in 2014 at the medical center in Tomah from a drug overdose that included opioid painkillers, which critics have said were overprescribed at the medical center.