Is this FTCA worthy?

[Flyby]

Is this FTCA worthy?

 

Thought I was posting in the correct Forum with my original post...know this is in Berta's wheelhouse: I am receiving 100% TDIU (90% SC w/remaining based on IU) since 2014.

Saw an APRN from 2010-2016. In that time they (APRN/MD) prescribed Lorazepam at first 2mgs (1mg twice a day). Had already fought VA solo for a decade in getting the diagnosis for SC PTSD and GERD back-dated and had tried a laundry list of prescribed meds but had had no luck. I was asking the APRN repeatedly about dependence on the Lorazepam, side-effects, etc...all documented. Was even told in a C&P by a PhD that the drug is "not addictive." I was told repeatedly the importance of "medication compliance" by the APRN.

Despite my life spiraling, all documented, the APRN kept prescribing. I even asked the dosage to be reduced. I never had a face-to-face with the MD as required by APRN/MD protocol in all that time. I had gained thirty pounds, was drinking heavily, was forced to sell a self-started business due to IU, and deaths of significant others, etc...all things that should have likely prompted a sit-down with the prescribing MD. 

Fastforward to just-prior-to Christmas 2016 I received a letter stating I was being reassigned to a new MD. Within seconds of our meeting the MD had already stated he had not read my chart and then proceeds to just berate me stating "I was an addict...look at you." I sit forward in a chair to hear. He would have known that if he would have simply read my chart. I held my tongue and just let him spew. He then states if I continue taking the drug I will "end up in a nursing home." In the same sentence, while essentially yelling at me, he says if you stop taking it you will "drop dead from a seizure." To say I was stunned would be an understatement. I said nothing.

I had been told for the past six years that this medication was a "wonderdrug" for me and I was told by the APRN to remain "compliant" in taking the med. I am not an addict by the way. I was someone that had taken a drug EXACTLY as prescribed for over six years while being assured and reassured by an APRN that it was nothing but beneficial for me. All documented. I was never told this drug was life-threatening. Again, I never abused Lorazepam only taking it as prescribed.

I had heard enough from this MD, also the Chief-of-Staff of the clinic; I asked him "if this medication is so dangerous then why have I been prescribed it for so long?" His response still resonates with me. I think at that moment he realized HE was the doctor signing-off on the APRN requests for that length of time...but he didn't stop talking. I knew that he was the MD before we ever met that day. His name was on every bottle filled. He admitted he "likely was the doctor signing-off" and "he had so many patients he just signed-off on the APRN requests." What?! His facial expression was priceless when the reality of what he was telling me hit him; he immediately began to throw the NP/APRN under the bus saying "she had a history of over-prescribing." He was incredibly rude, brazen, and unapologetic in his admisson. He even put in my progress notes from that day that my taking a half of a half of a 1mg Lorazepam as needed was my "attempt to ween myself." This was untrue at the time and I feel was a vain attempt to cover himself somehow.

I reported everything that was said to the patient advocate...her response..."you caught him." I have since discontinued the med not without horrible withdrawls and am now having uncontrollable muscle movements with my right hand curling inward with fingers locking rigidly, memory loss and gait/balance issues. I am obviously "unemployable" as well. The MDs attempt to taper me from the medication was questionable as well...he told me to "only take it if I need it" instead of a proper taper. The patient advocate and her supervisor have mentioned the Form 95 and my Rights. 

During the time I was on the medication I was in Chapter 31/35 Voc Rehab. I experienced just about every form of employment discrimination there is as a first-year teacher.That's a nightmare by itself. Just to put this out there...EEOC is a joke. I disclosed my hearing impairment prior to being hired on a pre-employment checklist, which is an illegal inquiry by the way. When I had a simple disagreement with an Assistant Principal about a collateral duty he placed me outside from Nov-Feb next to a running industrial-sized generator. When I requested to be moved I was ignored. EEOC opined not only was this normal but even allowed the opposing attorney to claim I had "never disclosed nor was disabled" despite having written proof. EEOC even allowed the opposing and one of its own directors to question my military service. I was forced to resign. I hope that hits home for folks on this forum. If EEOC can scoff at my military service and a VA SC disability then what does that say about their REAL view of ADA/ADAAA, veterans, and SC disabilities? I can't get a teaching interview due to retaliation from my former employer; EEOC is aware but refuses to even open mail from me. Again, EEOC apparently does not care about some veterans. I filed in Federal Court pro se when no attorney had the brass to represent me. 

Instead of VA Voc Rehab advocating for me, which they are required to do by statute, and helping me keep my job for a very specific disability disclosure prior to being hired as a teacher, they (VA) simply deemed me "unemployable." All the while they were prescribing a med that was obviously making my SC disability much worse--obviously hindsight helps here. The two MDs I have seen since 2016 both agree that not only was the dosage excessive, too prolonged, but most importantly that given my pre-existing SC of PTSD the expectation of very specific outcomes should have been expected. See Laskowski v US (Dondershine opinion).

According to my own research since the FDA has no clinical studies past several months for Lorazepam much less six plus years...further FDA states very clearly that in certain patients, PTSD symptoms could/will be compounded.

I have spoken with several attorneys that claim to handle FTCA cases. So far the majority only are interested in "catastrophic injury" cases. Considering I am faced with possible lifelong issues related to this med and a complete lack of accountability between APRN/MD is this FTCA material? I have read the Laskowski v US case which seems similar despite me not being a criminal. I do have a face-to-face appointment with an attorney in about a week. Please advise.

Edited March 21, 2018 by Flyby
Removed hyperlink

[Berta]

" The patient advocate and her supervisor have mentioned the Form 95 and my Rights."

Did you obtain a SF 95 and file it with the regional counsel?

Do you have any documenation regarding what the Patient Advocate said?

You might be past the Statute of Limits on that.( FTCA)

If so you can file a Section 1151 claim.

You dont need a lawyer to file that type of claim at this point-if you obtain a Very strong IMO/IME , that determines there is no other etiology for your additional disabilities than for the Ativan (Lorazepan) prescription.

But that means you have to have medical proof that this med caused you to have  documented additional ratable disabilities.

"The two MDs I have seen since 2016 both agree that not only was the dosage excessive, too prolonged, but most importantly that given my pre-existing SC of PTSD the expectation of very specific outcomes should have been expected. See Laskowski v US (Dondershine opinion)."

This  is  where you should seek an IMO/IME....as these doctors  are familar with your care.

In any event there is considerable info here as to the proper wordings of an IMO.

Also any doctor who does an IMO/IME for you will need to see all of your VA medical records-to see if the med was contraindicated by anything else, 

There is plenty on the net as to the bad affects this med can have, and they should bolster their opinion with abstracts or any study or treatises that confirm their opinion.

What VAMC was this? 

You mentioned having an appt with a lawyer-maybe you still are within FTCA limits- I cant tell.

I regret you had problems with ADA EEOC. My husband won the first ADA case here in NY. I did the legal work for him.My evidence was overwhelming.

That type of case  (ADA EEOC)is the same as any VA  claim regarding 1151 and/or FTCA  -

Documented Evidence is Everything.

 

[Berta]

I just read the case you posted- 

https://www.leagle.com/decision/infdco20130117f04

It is a superb example of how exactly how  FTCA cases can succeed and how the settlement can be Quite high.

I wonder if VA challenged the settlement.

Have you contacted this vet's attorney's?

Attorney(s) appearing for the Case

Daniel T. Brier , John B. Dempsey , Patrick A. Casey , Myers Brier & Kelly, LLP, Scranton, PA, for Plaintiff.

https://www.mbklaw.com/

Edited March 21, 2018 by Berta

[Berta]

One point-----there is a lot to read in your post and something bothered me:

"Despite my life spiraling, all documented, the APRN kept prescribing. I even asked the dosage to be reduced. I never had a face-to-face with the MD as required by APRN/MD protocol in all that time. I had gained thirty pounds, was drinking heavily, was forced to sell a self-started business due to IU, and deaths of significant others, etc...all things that should have likely prompted a sit-down with the prescribing MD. "

Lorazepan coupled with  alcohol use can create a Lot of problems.

[Buck52]

I would suggest you find a good experienced Attorney, let him/ her check this whole thing out ESPECIALLY IF YOUR 2 YEAR LIMIT AS RUN OUT? 

Going against MD or even a ARPN will be difficult. VA or Private

You had to have a face to face with a VA Qualified  medical professional or Private to get these prescribe medications at one time or another  after the first initial  evaluation.

 I can get my prescribe medication via MyHealthevet without having a face to face with a VA MD  EXCLUDING NARCOTICS  II Medications. 

However I can call in and get the Narcotics II, But I had an Initial evaluation with a MD First.

but my other prescribe medications I can get them by

checking the prescription boxes  off MyHealthevet and received them in the mail.

Now reducing the dosage I would think you would need to see a Qualified Dr for that and proof of documentation that you in fact did.   these type of cases require lots and lots of medical evidence on record. 

When having a good detailed medically documented case to present a IMO  it's Always best to use a Specialist in this field of medicine when giving his/her professional Opinion,preferable with years of experience.

I believe its called Relative Equipoise. (not sure on this case) 

when you have the correct medical documentation  that is what wins...as Ms berta pointed out.

I wanted to add this : maybe I am not understanding your situation?  or understanding what you are saying here?

Edited March 21, 2018 by Buck52

[Buck52]

https://community.hadit.com/forums/topic/70332-imo-options/

 

[Flyby]

Thanks for the input both Berta and Buck52.

Berta-I have not received or filed the Form 95 or submitted to counsel yet. I am going under the premise that my 2yr statute began to run in December 2016 with December 21 of this year being the deadline to file.

I have reached out to the Laskowski attorney Daniel Brier with no response thus far, and to several large firms in the US. Ironically, the attorney I am seeing soon didn't feel I had a case a year ago when we talked on the phone. He is local. I reached out to a large TX firm...within minutes the same local attorney reached out to me via email. Guess the firm forwarded him my info when I stated no local attorney would even see me?? 

The VA is in Georgia...will just leave it there for now. The patient advocate (supervisor) did document what we talked about, including the MD's words. She actually took the time to type it in carefully word-for-word and let me review it.

Just to be clear, I know now the drinking, etc. is harmful especially mixed with a drug like Lorazepam. The thing about Lorazepam that should have been made abundantly clear by an APRN or MD prescribing is that it is highly disinhibiting. It will make you do things completely out of character. All of that is contained within the FDA warning. Further, the warning concering PTSD symptoms being compounded, especially with alcohol is very clear. VA seemed to ignore that in my case. 

Just to reinforce my point I have not drank a drop of alcohol since discontinuing Lorazepam in Feb 2017, I have dropped the thirty pounds, and am not sick all the time. Lorazepam can and sometimes causes respiratory distress among other things. Instead of just continuing to prescribe a controlled substance what about counseling for alcohol use/abuse? That was never offered or referred by VA. Side note, my EEOC is in limbo. I withdrew without prejudice not knowing if I could withstand summary judgement. I have a letter now, gained through my own discovery, from a colleague that EEOC claims to have interviewed that completely dismantles EEOCs so-called investigation. Am working with a National advocacy group for hearing-impaired persons hoping to sway EEOC and how they handle veterans claims of employment discrimination. Thanks again for what you do and have done.

 

Buck52-Thanks for your response.

"You had to have a face to face with a VA Qualified medical professional or Private to get these prescribe medications at one time or another  after the first initial evaluation." 

The qualified medical professional that you mention is the APRN, a nurse practicioner with prescriptive authority given to them by the State (of Georgia) in this case and signed-off on by the State medical board, DEA, etc. I saw her face-to-face every six months for nearly seven years. In that time she never mentioned I might end up in a nursing home or dead from a seizure. Only that Lorazepam was beneficial for me and to remain compliant. Her supervisor, the MD I met for the first time in 2016, was signing off blindly on Schedule IV narcotics (Lorazepam a Benzodiazepine) because he had "so many patients." I agree that there has to be a face-to-face initial meeting but there was obviously an extreme lack of communication-accountability between the APRN and MD. The MD is the supervisor and is "responsible for every decision made by the APRN"(respondeat superior and vicarious liability) no matter how many patients they have or how busy. That is a loose quote from VA's and The State of Georgia's own guidelines concerning APRN/MD protocol. 

"wanted to add this : maybe I am not understanding your situation?  or understanding what you are saying here?"

I don't follow you here...this wasn't in my post or reply.

Edited March 22, 2018 by Flyby
DEA not ATF