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Tomah VA hospital

The VA Medical Center in Tomah.

A federal class-action lawsuit, filed by six veterans who said they feared exposure to deadly diseases from dental care at the Veterans Affairs Medical Center in Tomah, is scheduled for trial later this year, though a judge has not yet ruled on whether to certify it as a class action.

The six say in their lawsuit that they suffered emotional distress after learning that a dentist at the VA in Tomah had used improperly sterilized dental instruments that could have spread blood-borne infections including HIV and hepatitis. After tests on the nearly 600 vets who received care from the dentist, none was found to have been infected, after some waited for up to six months for results.

The lawsuit against the U.S. government, which seeks compensation for emotional distress, is scheduled for a trial in October.

The lawsuit was filed on Nov. 1, 2017, by the six veterans on behalf of a proposed class of 592 vets. The group had all received letters informing them of possible exposure to the diseases as a result of dental work done for them at the VA by Dr. Thomas Schiller. A September 2017 report by the VA Office of the Inspector General found that there were lapses in hygiene by Schiller that could have exposed the veterans to infectious disease.

The lawsuit alleged that Schiller’s hygiene practices were known to a number of Tomah VA employees, but no action was taken for close to a year.

On Sept. 25, 2018, U.S. District Judge William Conley denied a motion by the government to dismiss the lawsuit. The government, represented by the U.S. Attorney’s Office in Madison, argued that the vets had failed to allege sufficient facts to find there was actual exposure to contamination. Conley ruled that was not necessary.

“While the defendant argues that plaintiffs lacked reasonable grounds for emotional distress because the letter they received informed them that the risk of infection was low, there is no evidence that the letter was correct in this assertion,” Conley wrote, “and it may be that exposure to a low risk of a deadly infection provides reasonable grounds for emotional distress, at least where the exposure is to a large enough population.”

It may also be too much to expect patients to set aside their fears “based on the assurances of a medical facility that admittedly did not adhere to basic professional standards during their treatment.”

Conley also ruled out dismissal for an insufficient showing of severe emotional distress or a failure to exhaust other legal options short of a lawsuit.

When it formally answered the lawsuit in October, the government admitted that when Schiller was confronted about his practices, he admitted to using unsterilized dental burs that had been instead cleaned with a disinfectant, believing it was common practice in the private sector. But the government denied that the VA had failed patients by failing to adequately train Schiller in the proper use of dental equipment and in proper infection control.

The government asserted instead that Schiller “exercised a degree of care toward plaintiffs that was reasonable under the circumstances” and that the VA “exercised a degree of care in supervising, training and retaining Dr. Schiller that was reasonable under the circumstances.”

In a letter written in January 2017 to the Office of the Inspector General, Schiller’s lawyer, Dawn Marie Harris, blamed a “toxic work environment” at the Tomah VA for Schiller’s inability “to have the energy to initiate independent research after the busy day” into policies concerning supplies or sanitizing practices. She wrote he wasn’t given the Tomah VA’s written standard operating procedures.

“He is not an evil person who should be tarred, feathered and prevented from ever practicing dentistry again,” Harris wrote. “He is an individual who believed he was providing greater service to veterans through the use of better equipment that was disclosed to and approved by management.”

Lawyers for the veterans have also sought to take deposition testimony from Dr. Frank Marcantonio, who was chief of dental services while Schiller worked at the Tomah VA. But in September, Marcantonio declined, invoking his Fifth Amendment right not to incriminate himself.

Magistrate Judge Stephen Crocker in November allowed Marcantonio to file a written explanation for his refusal to testify, which only a judge can read. There has been no ruling yet on whether Marcantonio will be compelled to testify.

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