Legal Advice Before Ftca Submission

[MRRRR5]

Hello all.

To the Hadit Elders, if this is in the wrong forum, please feel free to move to the appropriate one.

I submitted a FTCA to the VA last year (springtime 2007) for some botched dental work that ultimately caused me to loose a tooth unnecessarily, which was confirmed by my civilian dentist. To add insult to injury, after dealing with this VA dentist for 5 months trying to get rid of an abscess that had infected my gums and asking him for fee base service to see a local dentist, he denied it and sent me to a VA facility over 400 miles away (roundtrip) for a Endo/perio consult to get a crown after the Endo/perio. Well needless, to say it was too late. On the 1^st trip (400 miles), x-rays and more penicillin and "come back in 3 weeks for the crown". 2^nd (400 miles) trip, different dentist says "tooth must be pulled, crown will not help". I was livid; ultimately made that trip just to have tooth pulled and "come back in 6 weeks for an implant". 3^rd (400 miles) trip, another different dentist and no implant because gum is not "firm" enough. Each time I went the 3 different dentists I saw were "very surprised that I was sent so far for dental treatment". :P That should have raised a red flag to me!! :(

Anyway, got a call from the VA attorney yesterday who stated "We have completed our investigation of your FTCA claim and have determined that you did not receive the proper care and should not have lost your tooth ;) ; we would like to offer you a settlement" , which was half of what I requested (5 figures). :(

After explaining that I still have not had the tooth replaced (implant or bridged) as the VA promised for over 14 months, and the various mental and physical problems it has caused me, I requested that they reconsider and settle for the full amount I requested. B)

I had a lawyer to look at what I submitted and explained what happened yesterday and I was told that I really "lowball" myself in what I asked for and should have gotten an attorney advice on this "before" submitting my FTCA. :(

Just one question, am I entitled to get a copy of the completed investigation before I determine if I want to settle? :(

Hope this helps others to remember to get legal advice prior to submitting FTCA so you don't potentially lowball yourself as I have done. :(

[MRRRR5]

GuaymasJim,

thanks for the reply and I will ask for the offer in writing. SF 95 filed in June 2007, and they sent acknowlegdement in September 2007, say they have a backlog.

One trip happened after SF filing; and they missed the 6 months administrative period due to the backlog as they told me in March 2008.

[MRRRR5]

Actually,

It wasn't until March 2008 when I inquired via phone about the claim that the paralegal informed me of the backlog. He stated that they had lost several attorneys and were backlog in their cases. He did not specify the type of backlog. I asked for a lot less than that max.

[john999]

You are sort of lucky with that bad infection that the VA did not kill you. People do die from abcessed teeth. The infection becomes septic and the person goes into shock and dies. World Class Health Care, my ass. I don't believe that bs about not being able to get an implant. If you have enough bone left after the extraction you should be able to get an implant. They just don't want to pay for it at the VA. They can do a bone graft if they have to for an implant.

[MRRRR5]

thanks for the info. Can I still ask the VA to fee base this even after the potential settlement if there is one?

[MRRRR5]

G-Jim,

thanks to you and John999 for the responses. I didn't think about the possible second and third order effects of the infection after the tooth was pulled since the dentist said it would clear up and then they would do the implant.

The paralegal only answered the phone and informed me of what attorney was handling my claim and also stated about the delay; this was in March 2008.

The phone call I got the other day was from that attorney who stated that they had "settlement authority". I just notified the attorney in writing summarizing our phonecon and requesting all settlement offers be sent in writing via fax or mail.

[Pete53]

MRRRR5

I am amazed at how far you have gotten with this. I think that the advice given you is right on.

My last comment if my math is right you are talking about at leat 5 grand and I would be pressured to accept it if it were me as a bird in hand you know.

I also have this comment about asking for mileage its only a couple of hundred bucks and may get in way of a real settlement. You also might consider a 75% increase over the current VA offer and see what happens?

Good Luck

I am not a Lawyer but I dealt with Lawyers when I work and they hate to deal with non Lawyers. This can be good sometimes but not to much.

I have lost 3 teeth to VA entis cause they really would rater pull a tooth than save it.

[MRRRR5]

Thanks Pete for the advice.

I was not looking at the mileage issue since that would just delay the larger issue at hand and I do want to really put this behind me and just get my tooth fix (implant or bridge) so I can start chewing food on that side! During my last cleaning, the civilian dentist stated that I have an excessive amount of plaque build up on the missing tooth side because of "not chewing" on that side. Additional, because of the missing tooth (#30), he stated that the crown that is just above it could potentially come loose and be swallowed because there is no tooth below it to make impact. Now you see why I wanted to get this fixed ASAP. I have been concerned about loosing that crown every since the dentist told me that in March 2008.

[carlie]

MRRRR5,

Make sure with your tort claim that they will not bar or prejudice

you down the road if you decide to also file an 1151 due to any problems

you may have with mastication.

jmho,

carlie

[Ricky]

Hmmm..... an attorney might be helpful here!

[MRRRR5]

Carlie,

thanks for the info. I've read about 1151 but I'm confused as to how that works so my brain and stress level during this ordeal just did not have the energy to look into 1151 claim . When I saw that 1151 and tort could possibly offset each other, I went with the one that I had some knowledge about.

Ricky,

thanks for the advice.

[Berta]

Yes -the tort money would be offset to the Sec 1151 claim award.

If you should lose the FTCA and cannot appeal in the limited FTCA time frame-then you could still file and pursue the Section 1151 claim.

To discuss negotiation amounts by phone with the VA attorney isnt unusual-

I did all my negotiations by phone with them.

When we finally agreed to a figure, they sent me the settlement papers.

That was the first documentation I had on what we agreed to,signed it, and they sent the money-

(I had to get on them to send the money however but it got to my bank electronically-I was satisfied with the amount but told them the price would go up fast as the money wasnt here when they said it would be-)

Then ironically the VA denied my Section 1151 claim again-even when I sent them the VACO OGC settlement papers.

The OGC as I recall-called the regional office- and months later they finally awarded the Sec 1151.

It was easier in my opinion- to deal with them under FTCA then expect the RO to award under 1151.VA lawyers can read. They read all my evidence.

I had only a partial DIC offset-this was a widow's wrongful death claim and many other factors come into play on widows FTCA awards.

So I had to make sure that the 1151 denials were corrected because they held back too many years of my DIC-long story- that was finally corrected too.

Their offer might be appropriate-

might not-hard to say-squeeze out what you can get from them.

Also make sure that they report any settlement to the NPDB (National Practitioners Data Bank)

The VA never reported my settlement properly. It meant numerous VA doctors went on to malpractice possibly- with other vets-

I have Foiaed the VA in DC many times on this matter and just got a bizzare reply-I called the lawyer who handled this lastest FOIA and said I felt the VA's approach to my request was ridiculous-(I want them to admit they never reported my husband's death properly but they dont know that I know that)

The VA is hiding many things from the public -as recent H VAC hearings show-and some malpractice attorneys have told me recently that they too believe VA is hiding their malpractice stats.

Every FTCA settlement has to be reported to the NPDB and through that it not only becomes public at HHS for anyone checking o see if their doctor has been sanctioned in any way-

it also is supposed to prevent further malpractice if the docs know they can be reported.

Oddly enough I got an odd tip last week from someone fairly high within the VACO system -to continue to pursue my request-and fight the FOIA denials-

there are definitely people in the VA system who see things that arent kosher and want others to look into them.

Edited July 8, 2008 by Berta (see edit history)

[MRRRR5]

Berta,

thanks for the info; wish I had known that it is not "unusual" to negoiate by phone. I was to get a phone call by today, but since I sent an email over the weekend asking that all communications be in writing, I guess that is why I haven't received a phonecall.

[MRRRR5]

Update,

FTCA settled for half of what I asked, which is not what I wanted but something is better than nothing when dealing with the VA, especially since I did not have an attorney. The attorney also told me I can submit an 1151 claim and should not have any problem getting it approved.

I asked for a copy of the completed investigation but was told that it was "an internal investigation" that is not releasable.

Anyway, thanks to all to HADIT members who provided advice and support.

[john999]

If we have access to lawyers who know their stuff if would be very wise to consult with them before filing any claim. They do this for a living while we do it once or twice in our lives. There is always fine print we don't know about in any legal proceeding. I found out when I filed an EEOC complaint that I could have gotten more if I had done a few things different. IF one side has lawyers and one side does not then the side that does not is at a great disadvantage. The law is nothing but techical loopholes.

[MRRRR5]

John999,

I agree with your last post. The VA knows they have the upperhand if we Vets don't have a lawyer.

[carlie]

MRRRR5,

What ever amount you were able to get out of them was good and being that

you didn't use an Attorney that was a 20 % savings. Congrats on your HUGE victory.

carlie

[MRRRR5]

Thanks Carlie.

I got 5k; now, just got to get fee-base from VA.

[carlie]

MRRRR5,

Check your PM's in a few minutes - I'll send you a suggestion.

carlie