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South Portland veteran fights VA to file damage claim

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South Portland veteran fights VA to file damage claim

SOUTH PORTLAND — Kenneth "Jake" Myrick's U.S. Army service took him to Kosovo and Iraq.

His fight to recover damages from the U.S. Department of Veterans Affairs is taking him to Capitol Hill.

Myrick has asked U.S. Sen. Susan Collins, R-Maine, to look into the VA's rejection of a $1 million tort claim, which alleges he received substandard care at the Maine VA Medical Center in Togus that tripled his disability to 90 percent.

For about five years, Myrick was a patient of Dr. Thomas Franchini, a podiatrist who left the hospital Nov. 8, 2010, according to Togus spokesman Jim Doherty.

Myrick, 40, said he also fears 80 or more other patients treated by Franchini are also suffering because of the care they received.

“Even though it is about me, it is bigger than that,” Myrick said recently. “I was in continuous pain from 2005 to 2013. You can't pay me for that.”

Myrick, who is also the only candidate in the upcoming Republican primary in state House District 32, claims a 2005 ankle operation and subsequent care led to additional leg pain and instability that required his left knee to be replaced last year.

The knee surgery was performed despite VA guidelines that veterans should be at least 45 years old to receive replacements.

Myrick, a Harborview Avenue resident who has a 2-year-old son with his partner, Wendy Rand, filed his claim with the VA on July 8, 2013, about five months after his knee was replaced.

On Jan. 6, his claim was denied by VA Regional Counsel Cynthia L. Tyler in Newington, Conn., who said the claim was invalid because it was filed more than two years after the treatment occurred.

"Our review of this claim did not reveal the existence of any negligent or wrongful act on the part of any employee of the Department of Veterans Affairs acting within the scope of his or her employment," Tyler said.

By law, a tort settlement of more than $300,000 must be approved by the VA Office of General Counsel and the U.S. attorney general.

Myrick has six months from the date of the VA denial to file a tort claim in federal court, where legal precedent is not on his side. In 1979, the U.S. Supreme Court overturned a decision by the U.S. Third Circuit Court of Appeals, which had allowed a veteran's claim about three years after a VA doctor used an antibiotic to treat his leg wound and caused hearing loss.

In his majority opinion, Justice Byron White said the tort claim "accrues when the plaintiff knows both the existence and cause of his injury, and not at a later time when he also knows the acts inflicting the injury may constitute medical malpractice."

Myrick sees his case differently.

He said he wasn't informed of Franchini's departure – or aware there were concerns about quality of care – until almost 2 1/2 years after the doctor left. That was in 2013, when he was contacted by hospital administrators, including director Ryan Lilly, chief of staff Dr. Timothy Richardson, and pharmacy chief Kurt M. Johnston.

Records provided by Myrick show Johnston told him he wanted "to discuss the Dr. Franchini podiatry disclosure case at VA Maine HCS."

On Feb. 11, 2013, Myrick was examined by Dr. James Sang, as part of a hospital re-evaluation of care provided by Franchini.

Sang, according to the documents, concluded "the lack of success of the left Elmslie ankle reconstruction procedure is due to a sub-standard performance of the procedure."

Hospital spokesman Jim Doherty declined comment on Myrick's case. He also declined to disclose how many other patients were re-examined in the review of Franchini's work.

Myrick said Lilly helped steer him through the claim process, and said the knee replacement has provided some relief. With it stabilized, he expects to have more work on his ankle, which audibly rattles when Myrick shakes his leg.

Kevin Kelly, a spokesman for Sen. Collins, confirmed that staff at her Portland office are looking into Myrick's case.

"Mr. Myrick contacted Sen. Collins' office requesting assistance, and our office has contacted the Department of Veterans Affairs seeking further information in response to the concerns that he has raised," Kelly said in an email.

Myrick first injured his knee in 2002. He was able to serve in a support role in Iraq in the early stages of the invasion in 2003.

“Once they found out I was there, they shipped me home,” he said. He was medically discharged in November 2003.

He then worked at the former Maine Youth Center in South Portland before mobility problems set in, leading to VA treatments that began in 2003. He underwent more knee surgery in 2004.

After the 2005 surgery, Myrick continued to complain of ankle instability and increased pain due in part to a lack of support for his knee. He was diagnosed with a bone spur and he was removed from Franchini's care.

Myrick has also worked for the Boys & Girls Clubs in Portland and South Portland. He has also hosted an annual Christmas dinner for homeless veterans and others at the club on Cumberland Avenue.

A Republican, Myrick first ran for office in 2010, losing to former state Rep. Jane Eberle, D-South Portland. In 2012, he was defeated by Rep. Scott Hamann, also a Democrat, who is seeking re-election this year.

“We trust the VA as an extension of the military," Myrick said, "and look what they have done."

David Harry can be reached at 781-3661 ext. 110 or dharry@theforecaster.net. Follow him on Twitter: @DavidHarry8.