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Berta

Ftca Claims

Question

FTCA claims get into many nuance of legalize that truly require the expertise of an FTCA lawyer.

These links are helpful in understanding some of the legal aspects of FTCA.

Also what can appear to be definite malpractice, after a thorough reading of the medical records by a medical expert- might not even be close to malpractice.

I saw this happen personally quite a few times .Once when a local VAMC vet appeared to have horrific malpractice case. He had the newspapers do a big story on the treatment he received and it read like a horror story. He contacted me through the VA Chaplain in Bath and sent me some of his med recs. (Some)and the newspaper article.

Long story- he said he had lawyers interested in his case but failed to get lawyer and filed the SF 95 himself-but too late.I had reminded him many times to get that filed because time was runnng out and I knew the exact SOL date. I had told him to seek a vet rep who had an office right next to the VA chapel where I met this vet for a Section 1151 claim and I gave him a note for the rep as to what I felt was a good 1151 basis here and would help with the claim.He said he filed it there but they didnt know him and had no record of it-

When I finally got the entire medical record package I saw right away that the VA could well mitigate any damages that this veteran claimed to have. There was documentation in the record that he been abusive to the VA staff and had not been compliant at all with his care. He started to even get abusive and controlling with me because I could not file anything for him.Nor make any statement to support his contentions.He needed a vet rep to do that.There was a lot more to all this but my point is-

what can certainly seem like medical error and negligence might not even be close to that scenario.

Only a good IMO doctor can really determine if negligence has occurred to a veteran and if not the veteran should have peace of mind knowing their medical care is,in fact, proper.

http://www.govtclaim.com/faq.html

http://www.lectlaw.com/def/f071.htm

http://www.nolo.com/legal-encyclopedia/article-29705.html

http://www.vamalpractice.com/

http://74.125.93.132/custom?q=cache:s64sCD...326217334650925

This Office of General Counsel Precedent Opinion shows how offsets are impacted by attorney fees.

Since this is an old opinion it is best to check the OGC Opinions site via the VA web site to see if anything else has altered this Pres Op or if there are any subsequent opinions regarding FTCA or 1151 claims that could impact your claims.

The National Veterans Legal Program Veterans Benefits Manual (VBM)

This legal text is available for purchase at the NVLSP web site.

It gives a good but brief overview of FTCA and Section 1151 claims- advising however that FTCA issues should be handled by attorneys.It does not get into the fine points of FTCA law.

The only legal information I had for my FTCA claim was basically what I found in the VBM as the internet in those days had no way to find FTCA information.The info was great but very limited.

I also used a law library for questions I had but could not find answers to in the VBM.

Also the BVA has cases regarding offsets.

They have 2 of my cases there in this regard.In the first claim the BVA was wrong.

In the second case they were correct.

The initial error they made was corrected by the Regional Counsel a few years ago.

I had a more recent offset matter. The OGC and the RC tried to blow me off.(I dealt with lawyers who knew all about my past FTCA case and who I had dealt with before and I had phone contact with them as well as email and snail mail) Persistence paid off.

I told them I was right based on established VA case law which I rattled off every chance I got.

Soon after that ordeal they agreed with me and I await the results now from the regional office.

It sure pays to have a lawyer however to save the time and rigamorale some of this stuff takes.VA lawyers are smart and can be cunning and manipulative-and they know VA case law in and out. I have tremendous respect for their expertise.

FTCA can succeed without lawyer or IMO but it is very difficult to do that.

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I wanted to update that OGC Pres op I posted-as to offsets- as this BVA decision spells it all out in a clear way with a more updated OGC opinion:

“The legal status in which a claimant recovers tort damages must be considered in determining the sum to be offset under 38 U.S.C.A. § 1151(:D. VAOPGCPREC 79-90. In this case, the evidence of record includes a VA General Counsel cover sheet dated in April 1998 which reflects that the total amount of the settlement of the FTCA claim submitted by the veteran and the appellant during the veteran's lifetime was $200,000. However, that cover letter does not describe the capacity in which the appellant was to receive the settlement. Attached to that cover memorandum is a form which identifies the appellant as the executrix and widow of the veteran. The request for payment of record does not include the complete record of the FTCA settlement, including the terms of the settlement, and does not describe the appellant's legal capacity.” This is a BVA decision on a widow's case. http://www4.va.gov/vetapp07/files1/0709748.txt (I am surprised the complete record was not provided to the VARO or BVA here) This is a case that should have been also reported to the NPDB The reason the VA is refunding my FTCA offset is due to my legal standing and legal status at time the settlement was made and because I successfully proved direct SC death as well as wrongful death. Both VA case law and M21-1MR clearly state that this FTCA offset is NOT applicable to any awards of direct SC for the same disability or death. I asked NVLSP of any other widow's cases like mine but they didn't know of any at that time. However I am sure vets have gotten the same type of offset returns. But I never found a case at the BVA or CAVC like that. If anyone here ever finds themselves with same situation,(proving direct SC for same disability the caused under FTCA settlement) my legal evidence might help them on the refund of offset and I will post for them the OGC letters and regs etc that I have on the way VA is supposed to handle these situations. The actual offset amount is usually negotiable in any case that would be similar to my FTCA case where there is surviving spouse due to wrongful death with same legal status as I had at time of offset.

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