Va Directive[s] "institutional Disclosure Of Adverse Events

[william n]

I recently submitted a formal request to the VA Bay Pines,Fla. for a formal meeting to allow the VA Hosp. to apologize for the sub-standard care I've received and allow me to voice my concerns, pertaining to my care and delay's as noted in my Med.Records. Per, VA directives they must allow this meeting to take place, to address any adverse events. Is this the case?? thanks, williamn

[william n]

Thanks carlie...i've got nothing but time..Sen. bill nelson just got on board..ssooooo,they'll be looking to make it right..filed ftca for 1 million, with 17 charges,the worst being Battery for 2 injections into AC joint with no "informed consent" shame on them!! keep you posted...Williamn

[jbasser]

Take you a recorder and tape the meeting. Also have a Representatibe with you. An attorney is best but they are expensive unless you have 1 in the immediate family.

If not, any certified med professional will do. Bottom line is Do not let them Bull you around.

J

[william n]

I was invited to a formal Adverse Event Disclosure at the Tucson VAMC. Contrary to the postings here, it is a very very important event. I went all the way to the VAMC Director demanding an AED and was denied at every level. I was only able to get the AED by complaining to the Joint Commission. Within 12 hours! of my complaint the VA was clammering to get me to the meeting. I strongly suggest you file a complaint with the Joint Commission! You can do it on line.

When you are invited to the AED, by all means take an attorney with you. The VA will be represented by the Regional Counsel. This meeting isn't designed for you to give information, but is designed for you to RECEIVE information. DO NOT admit any responsiblity for the adverse event. DO NOT volunteer any information. NONE.

PREPARE FOR THIS MEETING! (Post here again if you need some help.)

This is the time, and probably the ONLY time, you are going to get the opportunity to ask every question you can think of and the VA will clam up and stonewall after this meeting. Questions such as:

What type of investigation was conducted into the adverse event?

I want copies of the results of that investigation and/or any future investigation.

What happened?

Why did it happen?

What could and should have prevented it?

Who is responsible for the adverse event?

Who made what decision?

What is being done to prevent this from happening in the future to other vets?

What is the written VAMC policy or clinical guidelines for the treatment or surgery in question?

What will the VAMC do to assist you in recovering from the damage?

Second opinions?

Expedited clinical evaluations and tests?

DO NOT ACCEPT BS OR VA MUMBLE JUMBLE! YOU HAVE A LEGAL RIGHT TO ALL OF THIS INFORMATION.

More than likely the VA will already have determined that an Adverse Event took place and will give you the most sterile heavily nuanced apology you can possible imagine. Again, contrary to some posts here, in many states apologies are protected and cannot be used against them in court. Google"Sorry Works" for a explanation of this.

Ask for the name and position of every person in the room. Again, you have an absolute right to this information. Either record the entire meeting or at the very least take copious notes! It would be best to take someone along just to record or take notes.

DO NOT divulge your intentions regarding 1151 or FTCA claims. They know you have the right to file those claims and they will explain those rights to you to some degree.

Finally, get a copy of your medical records--all of your medical records! The Adverse Event Disclosure will be in there probably by the following day. Mine were available a couple of hours later.

There are mixed opinions here on hadit about 1151 claims. I didn't bother to make one because I am already 100% IU and have been for 27 years. I didn't want to open that rating up to review when I could gain absolutely nothing from the risk. If you are in a different situation there are others here with a great deal more knowledge about them than I have.

In regard to an FTCA claim, be very aware of the various deadlines. The VA will certainly be aware of them. Basicly you have two (2) years from the date of the event to file suit. You MUST file a SF-95 claim form (MAKE SURE YOU SIGN IT AND CLAIM A DOLLAR AMOUNT) and then allow the VA six (6) months to investigate and process the claim. Those six months ARE NOT in addition to the two years but subtracted from them--if you wait to file 19 months after the event--the VA can AND WILL wait until the two year deadline has passed to act on your claim. You will have lost your right to go to federal court for ever. Google FTCA and read and read and read. If the VA formally denies your claim then you have six months to file suit. If they do nothing and the six months passes, you have until the 2 year deadline to file suit.

Save EVERY receipt any way connected to the adverse event. Save EVERY scrap of paper connected to the adverse event.

It may be difficult to find an attorney to represent you, but I believe it is imperative to have one especially early on. Your best chance of getting an attorney is if you go to them with all the information needed to validate your claim. I had a 187 page narrative including tapes, photos and quotes. Keeps yours much shorter! Just the facts! Attorneys will not accept your case based on sympathy or patriotism. It will be a hard cold business decision--nothing more. Call your states Bar Assn. for referrals.

In most states you will need an "Affidavit of Merit" from an expert in the proper field. The affidavit will cost $2-4000. Some attorneys will expect you to pay that fee. Others will pay it for you and then deduct it from any settlement or judgement. Attorney fees are capped at 20% plus expenses for a settlement before filing suit and 25% plus expenses for a settlement or judgement after filing suit. It is a felony to charge more!

FTCA malpractice claims are filed in Federal District Court but rely on state and local malpractice statues. Punitive damages are prohibited, but non economic damages such as pain and suffering, loss of consortium, negligent or intentional infliction of emotional distress, and aggrevation of preexisting conditions are all allowed. In many cases these damages represent a major portion of any settlement or judgement. Derivative claims by a spouse or child are allowed. A derivative claim will succeed or fail on fate of the primary claim. If your state has limits imposed on non-economic damages, any compensation awarded will be subject to those limits. Your case will be heard by a Federal District judge and not a jury.

It is a hard and long road, but the VA paid out in excess of $460,000,000 in damages due to malpractice last year alone. The average claim was somewhere in the mid $400,000 range.

Good luck and my best wishes for a positive outcome to your situation. I know how hard it can be!!!!

I greatly appreciate your feedback and you just shared a wealth of knowledge[ck. in the mail] ;) again you made some great disclosures yourself..i will take them to heart, you changed my perspective ..for that i thank you your brothers and sisters thank you..williamn [ ps already filed a ftca 95 tort,what now??]

[Berta]

"Basicly you have two (2) years from the date of the event to file suit."

No this is incorrect- you have two years from the date of knowledge of the event in which to file SF 95.

"The following amounts will be excluded from a claimant’s recovery under the FTCA: Punitive damages. Many states permit the plaintiff in a tort action to recover additional money from the defendant beyond the amount required to compensate the plaintiff for his or her loss. Such damages are known as punitive damages because they are awarded to punish a defendant who has engaged in conduct that is wanton, malicious, outrageous, or shocking to the court’s conscience. Under the FTCA, the government is not liable for any punitive damages that might otherwise be permitted by state law. . Interest before judgment. . Value of government benefits. When the government is liable to pay an FTCA claim by a military member, and the claim is not barred by the Feres doctrine, the value of government benefits (such as medical care, rehabilitation, and disability benefits) will be deducted from the military member’s recovery. l While there is no maximum to the amount of recovery permitted under the FTCA, any FTCA payment in excess of $25,000 requires the prior written approval of the Attorney General of the United States or his or her designee. STATUTE OF LIMITATIONS The FTCA contains several strict time limits that include the following: . Two-year statute of limitations. The claimant has 2 years from the date the claim against the government accrued in which to present a written claim. If the claimant fails to present his or her claim within 2 years, it is barred forever. A claim accrues when the act or incident giving rise to the claim occurs, or when the claimant learns or reasonably should have learned about the wrongful nature of the government employee’s conduct. Thus, a claim arising out of an automobile accident would normally accrue when the accident occurred. A claim arising out of medical malpractice will not accrue, however, until the claimant learns or reasonably should have learned about the malpractice"

http://www.tpub.com/content/administration...s/14134_314.htm

In other words- say I did not discover malpractice for 3 years after Rod's death and filed a FTCA at that time.

My FTCA claim should not be barred by the SOL.

But the USA's defense could well be that- if I knew it 3 years after his death maybe I should have known it sooner- and they might fight the SOL.

I filed within 2 months after his death.

"If they do nothing and the six months passes, you have until the 2 year deadline to file suit"

I disagree with that too:

As I recall -after the six months period if the VA has failed to act on the FTCA claim, that can be considered a constructive denial and I believe a claimant only has 6 months from that initial 6 month period to file suit in Fed court.

Can you give a citation for the 2 years after a constructive denial?

This sure is news to me.

(I need to add- My FTCA claim took over 3 years from start to finish-

but I dont want to mislead anyone here why it took that long- not a SOL matter at all)

The original Regional Counsel agreed with my claim based on a Peer Review report he had ordered and the Medical Director's report totally agreed with my charges.3-4 months after I filed the SF 95.

The RC wanted to finish my FTCA and settle with me by April- 4 months after I filed it-then he retired and so did the Medical Director.

The Peer Review report that revealed malpractice was suddenly 'lost'by VA.

The claim then went to the OGC in Washington- and after lots of back and forth rigamorale-I finally won.

The claim should have never taken that long- over 3 years but the "lost report" was critical and I even called the RC at his home after he retired to verify that he told me he walked down to the RO the day he got this report to assure it went into my C file for the 1151 claim-

and he had a copy also for the FTCA claim which he felt the new RC could easily finish.

Somehow this report got 'lost' and the VA had to do more medical reviews.

In 2003 -way after I settled with the VA-I asked for copy of my c file just to see what was what- that was very revealing-

all of the stuff VA had told me they has lost was in the C file and right at the bottom of it all was the 'lost' Peer Review report.

I am telling all this so no one thinks I had 3 years to which to prove my FTCA claim-I only had a year and I proved it the first time in 3 months-

then had to prove it all over again.Because of this so-called 'lost' report.

I never received a constructive denial.

Although things went wrong in the beginning-I had clearly proven the claim by medical evidence within months of filing the SF 95-to which I attached a few critical clinical records.)

Edited October 31, 2007 by Berta

[william n]

"Basicly you have two (2) years from the date of the event to file suit."

No this is incorrect- you have two years from the date of knowledge of the event in which to file SF 95.

"The following amounts will be excluded from a claimant's recovery under the FTCA: Punitive damages. Many states permit the plaintiff in a tort action to recover additional money from the defendant beyond the amount required to compensate the plaintiff for his or her loss. Such damages are known as punitive damages because they are awarded to punish a defendant who has engaged in conduct that is wanton, malicious, outrageous, or shocking to the court's conscience. Under the FTCA, the government is not liable for any punitive damages that might otherwise be permitted by state law. . Interest before judgment. . Value of government benefits. When the government is liable to pay an FTCA claim by a military member, and the claim is not barred by the Feres doctrine, the value of government benefits (such as medical care, rehabilitation, and disability benefits) will be deducted from the military member's recovery. l While there is no maximum to the amount of recovery permitted under the FTCA, any FTCA payment in excess of $25,000 requires the prior written approval of the Attorney General of the United States or his or her designee. STATUTE OF LIMITATIONS The FTCA contains several strict time limits that include the following: . Two-year statute of limitations. The claimant has 2 years from the date the claim against the government accrued in which to present a written claim. If the claimant fails to present his or her claim within 2 years, it is barred forever. A claim accrues when the act or incident giving rise to the claim occurs, or when the claimant learns or reasonably should have learned about the wrongful nature of the government employee's conduct. Thus, a claim arising out of an automobile accident would normally accrue when the accident occurred. A claim arising out of medical malpractice will not accrue, however, until the claimant learns or reasonably should have learned about the malpractice"

http://www.tpub.com/content/administration...s/14134_314.htm

In other words- say I did not discover malpractice for 3 years after Rod's death and filed a FTCA at that time.

My FTCA claim should not be barred by the SOL.

But the USA's defense could well be that- if I knew it 3 years after his death maybe I should have known it sooner- and they might fight the SOL.

I filed within 2 months after his death.

"If they do nothing and the six months passes, you have until the 2 year deadline to file suit"

I disagree with that too:

As I recall -after the six months period if the VA has failed to act on the FTCA claim, that can be considered a constructive denial and I believe a claimant only has 6 months from that initial 6 month period to file suit in Fed court.

Can you give a citation for the 2 years after a constructive denial?

This sure is news to me.

(I need to add- My FTCA claim took over 3 years from start to finish-

but I dont want to mislead anyone here why it took that long- not a SOL matter at all)

The original Regional Counsel agreed with my claim based on a Peer Review report he had ordered and the Medical Director's report totally agreed with my charges.3-4 months after I filed the SF 95.

The RC wanted to finish my FTCA and settle with me by April- 4 months after I filed it-then he retired and so did the Medical Director.

The Peer Review report that revealed malpractice was suddenly 'lost'by VA.

The claim then went to the OGC in Washington- and after lots of back and forth rigamorale-I finally won.

The claim should have never taken that long- over 3 years but the "lost report" was critical and I even called the RC at his home after he retired to verify that he told me he walked down to the RO the day he got this report to assure it went into my C file for the 1151 claim-

and he had a copy also for the FTCA claim which he felt the new RC could easily finish.

Somehow this report got 'lost' and the VA had to do more medical reviews.

In 2003 -way after I settled with the VA-I asked for copy of my c file just to see what was what- that was very revealing-

all of the stuff VA had told me they has lost was in the C file and right at the bottom of it all was the 'lost' Peer Review report.

I am telling all this so no one thinks I had 3 years to which to prove my FTCA claim-I only had a year and I proved it the first time in 3 months-

then had to prove it all over again.Because of this so-called 'lost' report.

I never received a constructive denial.

Although things went wrong in the beginning-I had clearly proven the claim by medical evidence within months of filing the SF 95-to which I attached a few critical clinical records.)

Thank You, i greatly appreciate the info and the dose of motivation everyone gives each other here. bless you, williamn