Rtkr

[gerard]

I had a total knee replacement from the va on March 11, 2015. My leg is worst than before surgery. I have major pain and can't been leg to 70-80 degrees back and 10 degrees forward. I can't work, hurts to walk, use a cane, and I can't drive. I have gotten a second opinion and I need a revision. Can I file a tort claim against the Va. I could do things before now I am completely limited and major depress cause of this surgery.

[Berta]

Forgot, this is one of 57 cases at the BVA whereby the 1151 survivor was not eligible for CHAMPVA or Chap 35:

http://www.va.gov/vetapp11/Files1/1109759.txt

I called CHAMPVA once because they had gotten my CHAMPVA award mixed up (I get Chap 35 and CVHAMPVA under fact that posthumously VA awarded my husband 100% SC P & T for PTSD.

Apparently it was just a mistake Peggy made, reading a status for whatever claim I had then, and CHAMPVA fixed it fast.

I asked the women at CHAMPVA if they get many 1151 survivors, thinking they are eligible for CHAMPVA and she did from time to time they did and it was awful to tell them they were not eligible.

I bet there are more 1151 deaths then we know of because many are never appealed for DIC beyond the RO decision.

And worse yet many 1151 claims that are never filed by vets, or by their survivors.

Doctors who are the cause of 1151 cases do not get reported to the NPDB. Therefore they never get named on any state data bank from HHS departments, as being disciplined by the VA so they can just go on to harm more vets.

[gerard]

This is sc. I have filed for temp 100% & TDIU.

Second opinion comes from non-va doctor, He stated I would need a revision and I could use some lowering of his tibial cut, as this would give him more room for flexion and extension.

Thanks for the information. All this has mentally drain me and I am so depressed. I was looking to come out of surgery better. Now I feel I should have never done this.

Edited June 27, 2015 by gerard

[Capt.Contaminate]

Hello Gerard,

I am sorry you have to go thru this. I know how taxing this is having try and fight with the VA on FTCA and Section 1151. I agree with Berta on what she is saying and want to add that the importance of an IMO or IME is key to your win.

Your first objective is to get your SF 95 filed and like Bronco said within 2 years of the malpractice OR within 2 years of when you were made aware of it.

Having the evidence to win or settle your claim is the key. Yes VA will try and settle with you for a very cheap amount at the local level. Meaning you VAMC center and that Justice Dept lawyer assigned to it. They only have authorization to settle with you for a trivial amount. Lets say that anything over 20,000 dollars must be appealed to Dept of Justice(NOT VA) in Washington , D.C. That is just the way it goes.

Having a good attorney is paramount to representing you. Things have changed at the VA over the last 5-7 years.

Also remember that an FTCA Tort claim must follow your state guidelines on Maximum caps. Check your state to see what the maximum cap is and know that you are limited to what they can pay you because of the cap in that state . It is very complex and hopefully you do not live in a state that has a low cap on FTCA. Also make sure you file for a large amount say 5 -10 times that of the cap. You cannot collect anything above what you claim but if you choose a lesser amount , you may have to actually go to court. That is the problem

I will tell you that in almost all states it will take you about an average of 125,000 to 150,000 just to prepare for trail. You will never get what the MAXIMUM cap is for your state. That is not how the game is played.

It is the evidence that prevails , both from your Service Medical Files , your doctors and the IMOs or IMEs that you gather.

It is best if you put your datelines together , exhibits, and opinions together. Your attorney is not capable of knowing everything , but is able to pull the nuggets out of your records and to put that in order. Your doctors IMOS or IMEs are to be used with the FTCA to help the lawyer argue your case.

It will be up to the veteran to get all of this information together for your lawyer.

Please remember that if you settle you lawsuit under FTCA it by no means allows an automatic win for you at the Section 1151 level.

It does give you power to show that the Section 1151 is still on the table and you are able to propel that CLAIM (Section 1151) forward thru its course. VA will vigorously defend against any 1151 claim. Moreso than the TORT FTCA. Also remember that should you prevail at the FTCA and reach a settlement or a win in court , that the money you receive will be deducted from your hopefully successful win at the Section 1151. You cannot be paid for both.

For example , you are awarded 100,000 dollars in a settlement of your FTCA. And several years latter you win your Section 1151. The VA for instance awards you 100% Service Connected under guidelines of the Section 1151. They will deduct for instance roughly 2890.00 per month from the 100,000 payment of the FTCA. If it is paid back under the guidelines , then do the math. 2890.00 per month X 12 months equals 34,680 dollars a year. SO ,,,,,it will take nearly 3 years to get that paid back to VA. After it is paid back the Veteran can start expecting all of those benefits under Section 1151 to start at the month proceeding the paypack. Yes, it is complicated,,,,but the benefits could put you above the SMC , Special Medical Conditions that open up more of the Benefits awards and entitlements because you could possibly get over 160% Service Connected , if you are say service connected to about 70-90 percent.

It took me 3 years and lots of hard work to win a settlement from Dept. of Justice in Washington and I put all of the evidence together myself and paid for 2 IMOS and IMEs . The 2nd group of lawyers , ( the first one lost his desire) paid for another IMO which gave me 3 opinions and all of them were scathing forcing the VA to put me into a "new" program that was unheard of and I was one of the first Veterans to then have my suit settled in less than 30 days. I am also talking about money in hand too. Now the section 1151 is ongoing and they have denied me which sets it up for BVA and I expect to win that. But who knows how long it will take.

I think it is as Berta points out appaling of the number of deaths under FTCA and Section 1151 that never get decided FAIRLY or accurately. It is one claim of the VA that offers no real outs for the Veteran , nor their dependents.

I do caution you to make sure that your IMO or IME is PROBATIVE and allows no wiggle room for challenge. How your knee heals with regard to a time line is so important. But if the doctor initially harmed you , and your IME can expressly bring this up then the timeline is of no importance and could be deemed moot by a good attorney that specializes in VA FTCA.

First , get your FTCA filed (SF 95). Get a good attorney if possible. Study your Section 1151, FTCA rules. And last but not least........NEVER GIVE UP. Blessings, C.C.

Edited June 27, 2015 by Capt.Contaminate