Received Re[ly From Va Attorney On Tort Claim

[littlejuniata]

They want to know of any non VA hospital or doctor within the last 5 years, statements of income fo five years, number of dependants, and a detailed report from a medical expert outling in full where the VA fell below the generally acceptable standards at time of treatment. Any and all hel appreciated. (I was here before asking for advice and the forum is great, I didn't know wether to continue the old discussion or start a new one, sorry if I messed up)

Edited July 2, 2007 by littlejuniata

[Berta]

Just to add one thing-

what often appears to be prime facie- on its face- obvious malpractice- sometimes isnt malpractice at all-

if the VA or any private medical center errs and then fixes the error- if they cause no damage to the patient, it does not rise to a level of maplractice-

that is why these days IMOs are critical as a good IMO doctor can determine right away- if the damages were mitigated but still the patient has suffered a loss or a disability directly due to the malpractice-

In your case I would-if I were you- file not only Sec 1151 claim but also a claim for service connection on a secondary basis-for any additional disability this surgery caused.

A veteran can raise as many reasons for service connection as they want to-

I raised 3 reasons for direct SC of my husband's death.

AO contributing, PTSD contributing, and death by VA.

Death by VA (1151 claim)succeeded.

Also in 2004 I raised the issue that the veterans initial 1151 claim-which I re-opened word for word- stated he felt his PTSD had been malpracticed on. I have evidence of that and sent it to them.

The VA had never made a decision on that part of his PTSD claim.

I wrote to the VSM of this-asking for the PTSD claim under 1151 to be decided.

She wrote back-it had been decided as part of the 1151 award !!!!!!

Say what?

I wrote back that her statement is evidence for my PTSD contributing to death claim !!! The VA had never admitted that before.

The VA in essense (the VSM) stated Rods SC PTSD contributed to his death.

That is a direct SC death.

That death has Peace with Honor.

Maybe this is why VA filed a Motion at the BVA_ on this decision-for reconsideration.

Men and women I am printing off my own post here because I seem to pay so little attention to my own VA matters- and keep forgetting all the coals I have in the fire---

I need to dig out all my VAola crapola and see what is what-

Of course when I get the proper decision on the AO claim ( after 4 1/2 years at the RO) much of the other stuff there is moot anyhow.That is the actual decision I want.

But the PTSD contributing to death claim had more evidence than I thought when I filed it.

A VA exoert who had opined in 1996 against my Sec 1151 claim had given support for PTSD as a contributing factor to his death- with some medical rationale stated-

I got the 1151 award and did not pursue this claim (except filed a I-9 that went to the board-)but this is-I think- the claim that VA filed Motion to re-open on at the BVA last August.

(I dont even remember if I was denied or that this appeal was rendered moot at the BVA due to the Sec 1151 award????)

But still my point is that a veteran can raise any legitimate potential reason for basis of service connection, even more than one basis.

Edited July 4, 2007 by Berta

[littlejuniata]

Thanks Berta, the VA did fix the problem, leaving me with a damaged heart, weight loss, lousy posture frail look, energy loss, loss of quality of life, and partial loss of my arm in addition to daily pain in the neck area. Since I have had no other doctors since joining VA except my regular doctor who I have seen once in 5 years for a minor vist and the VA doctors know my state of health, are my current VA doctors the ones who should give the health assesment?? What is the procedure for filing a 1151. Thanks a whole lot

[littlejuniata]

Hrllo Berta. are you around?? Thanks I am about to draft an email to the VA attorney and don't want to look dumb!

[Berta]

A Section 1151 claim has nothing to do with the Office of General COunsel.

It should be the exact same claim however and you will need the same evidence for both the Section 1151 claim as well as the FTCA claim.

Just send the VARO a letter-put your C file number on it and state:

This is a claim under auspices of 38 USC Section 1151. I believe my medical records will reveal that the VA caused me to have additional disability due to medical errors that occurred within the recent medical/surgical procedures I had at the VA in ______ in (date).

The additional disabilites I incurred due to these medical errors are _____ and______.

That's it-

I think the other day I mentioned to keep it short and then if you want you can refer to your evidence in this initial claim and attach it or just sit back and see what they do-

as I mentioned-during the 3 years plus it took VA to award my Sec 1151 claim-they almost killed a friend of mine.

I typed the claim, he signed it (he didnt understand it at all) and he mailed it to the VA.Mid Jan 1995.

No evidence sent whatsoever-we just told them to review his medical records -like above template I put here-

April 1, 1995 retro in his bank account already and the award letter came a few days later-100% plus SMC due to malpractice under Section 1151.

We did not have any copies of his med recs yet. But I just knew what was in them- malpractice-

I suggest that you get a service officer to help with the Section 1151 claim.

It seems to me that the medical errors should be quite evident in your records and I mentioned making sure the blood transfusion record is there.

I also suggested before-

get all the med recs before filing these claims.

Otherwise VA will give you a hard time in getting them.

Edited July 7, 2007 by Berta

[littlejuniata]

Thanks Berta, the VA has my history for the last 10 plus years, they know my condition before surgery and after, do I still need to get an outside doctor to make an opinion? Thanks agian

[Berta]

I suggest getting an Independent medical opinion- the IMO doctor will need to see all of your medical records in order to properly opine on your Sec 1151 claim- the IMO report can also be used to support your FTCA claim-

Copies of the IMO (if it is favorable and reveals malpractice) should be sent to both to the Regional counsel or the General Counsel- whoever sent you the last letter-

You will recoup any IMO costs if your claim succeeds -from the 1151 claim or the FTCA settlement.

Otherwise you have the peace of mind knowing that an independent doctor did NOT find malpractice.

I studied medicine for months to find evidence of malpractice-I was sure right away that the VA was liable but still-

I am not a doctor.

It never occurred to me to see an IMO doctor.

I was VERY persistent and quick to call up and talk to the VA medical strategic team in DC as well as the OGC-

and had to be up to their level regarding the medical evidence-and heart and brain ischemia-

unless you have the time to do all that-I again suggest that you get an IMO-

My claims were not a cake walk-I had to knock down 2 experts here in Buffao and then I even had to knock down the initial cardio doc in WAshington-

Medical evidence is everything-

you could be fortunate like my friend- it was so obvious they had to award fast-

then again if he had gotten denied he would have gotten an IMO.

I say go into battle with plenty of ammo- be on the offensive-from the git go-

meaning -have what you need before they can find holes in the claim.

You appear to have a legitimate claim, to me, based on what you posted here.I have no idea what your medical records could reveal however-

But it doesn't matter what I think anyhow -it matters what the VA thinks-

and they will have to think much harder as to how to deny these claims-if you send them a cpmplete IMO that says they did commit malpractice with a full medical rationale.

There are plenty of malpractice claim docs on the net- as well as Dr. Bash and others- they even pop up here at hadit in the little ads up top.