Ftca Claim Against The Va For Malpractice?

[bigvic]

Is a ftca claim against the VA for malpractice the same as an 1151?

[Berta]

No- I explained a little about it under the other post-

FTCA- is a claim against the United States of America.

That is who you settle with(under the auspices of VA General Counsel).

Those claims are handled by VA attorneys.

When a SF 95 is filed, they send you a letter asking for basically the proof of your charges.

A Section 1151 claim is filed with the VARO. It results -if one succeeds, in compensation under 1151 for the additional disabilities that the malpractice caused.

Both claims need clear and convincing medical evidence from VA medical records that megligence or malpractice has occurred.

If a vet is contemplating either or both types of claims- they should get copies of all of their VA medical records before VA is aware of their charges- because that is when stuff at the VARO can mysteriously get 'lost'.

[bigvic]

OK How do I file a FTCA claim then...? I'd like to see them try and disprove the evidence I have against the VA...

[carlie]

Link for FTCA research.

Hope it helps you.

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

carlie

I am not recommending this firm just posting it for your info., hope it helps.

Also: http://www.vamalpractice.com/tort.html

The Federal Tort Claims act involves several procedures that are different than the procedures, which are used to handle a claim against an ordinary individual:

1. A proper administrative claim must be filed with the appropriate Federal Agency within two years. Although this seems simple, click here for a partial list of reported cases where this step was not completed properly and the claimant's case was dismissed. Click here for more.

2. The time for filing a complaint is governed by when the Federal Agency denies the claim. In some cases you may have to file your case as soon as six months after your accident, and in other cases you may have more than two years from the date of your accident to file your claim Although this seems simple, click here for a partial list of reported cases where this step was not completed properly and the claimant's case was dismissed. Click here for more

3. You must file your complaint in the appropriate United States District Court. Although this seems simple, click here for a partial list of reported cases where this step was not completed properly and the claimant's case was dismissed. Click here for more.

4. You must serve your complaint on the appropriate U. S. Attorney and the Attorney General of the United States. Although this seems simple, click here for a partial list of reported cases where this step was not completed properly and the claimant's case was dismissed. Click here for more.

5. The Federal Government is not an insurance company. A Federal Tort claim can only be made if the Federal employee was acting in the "scope of his employment". In some cases, the Federal Government will not be responsible for the actions of its employee and you may have to file a complaint against the individual in the appropriate court. Sometimes the statute of limitations against the individual employee, maybe different than the statute of limitations against the Federal Government.

6. You are not entitled to a jury trial. Your claim will be decided by a United States District Court Judge, without a jury.

7. The maximum attorney's fee is 20% for cases that are settled before suit is instituted and 25% for cases that are put into suit. (28 USC §2678)

Edited May 1, 2006 by carlie

[bigvic]

They dont make it simple do they...

Bigvic

[carlie]

Bigvic,

They like to make it difficult !

carlie

[Code of Federal Regulations]

[Title 38, Volume 1]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR14.600]

[Page 544-545]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 14_LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS--Table of

Contents

Sec. 14.600 Federal Tort Claims Act--general.

(a) Federal Tort Claims Act--overview. The Federal Tort Claims Act

(28 U.S.C. 1291, 1346, 1402, 2401, 2402, 2411, 2412, and 2671 through

2680) prescribes a uniform procedure for handling of claims against the

United States, for money only, on account of damage to or loss of

property, or on account of personal injury or death, caused by the

negligent or wrongful act or omission of a Government employee while

acting within the scope of his or her office or employment, under

circumstances where the United States, if a private person, would be

liable in accordance with the law of the place where the act or omission

occurred.

(B) Applicable regulations. The regulations issued by the Department

of Justice at 28 CFR part 14 are applicable to claims asserted under the

Federal Tort Claims Act, including such claims that are filed with VA.

The regulations in Sec. Sec. 14.600 through 14.605 of this part

supplement the regulations at 28 CFR part 14.

© Delegations of authority concerning claims. Subject to the

limitations in 28 CFR 14.6©, (d), and (e), authority to consider,

ascertain, adjust, determine, compromise, and settle claims asserted

under the Federal Tort Claims Act (including the authority to execute an

appropriate voucher and other necessary instruments in connection

therewith) is delegated as follows:

(1) To the Under Secretary for Health, the Deputy Under Secretary

for Health, Veterans Integrated Service Network (VISN) Directors, and VA

Medical Facility Directors; with respect to any claim for $2,500 or less

that arises out of the operations of the Veterans Health Administration.

(2) To the General Counsel, Deputy General Counsel, and Assistant

General Counsel (Professional Staff Group I) with respect to any claim;

provided that any award, compromise, or settlement in excess of $200,000

shall be effected only with the prior written approval of the Attorney

General or his or her designee.

(3) To the Regional Counsels and Deputy Assistant General Counsel

[[Page 545]]

(Professional Staff Group I) with respect to any claim; provided that:

(i) Any award, compromise, or settlement in excess of $100,000 but

not more than $200,000 shall be effected only with the prior written

approval of the General Counsel, Deputy General Counsel, or Assistant

General Counsel (Professional Staff Group I); and

(ii) Any award, compromise, or settlement in excess of $200,000

shall be effected only with the prior written approval of the General

Counsel, Deputy General Counsel, or Assistant General Counsel

(Professional Staff Group I) and with the prior written approval of the

Attorney General or his or her designee.

(d) Delegations of authority to reconsider final denial of a claim.

Subject to the limitations in 28 CFR 14.6©, (d), and (e), authority

under 28 CFR 14.9 to reconsider final denials of claims under the

Federal Tort Claims Act is delegated as follows:

(1) To the Regional Counsel with jurisdiction over the geographic

area where the occurrence complained of arose, with respect to any claim

for $2,500 or less that arises out of the operations of the Veterans

Health Administration.

(2) To the General Counsel, Deputy General Counsel, and Assistant

General Counsel (Professional Staff Group I) with respect to any claim;

provided that any award, compromise, or settlement in excess of $200,000

shall be effected only with the prior written approval of the Attorney

General or his or her designee.

Note (1) to paragraph ©(2): For any award, compromise, or

settlement in excess of $100,000 but not more than $200,000 a memorandum

fully explaining the basis for the action taken shall be sent to the

Department of Justice.

Note (2) to paragraph ©(3)(i): For any award, compromise, or

settlement under paragraph ©(3)(i) of this section a memorandum fully

explaining the basis for the action taken shall be sent to the

Department of Justice.

Note (3) to paragraph (d)(2): For any award, compromise, or

settlement in excess of $100,000 but not more than $200,000 a memorandum

fully explaining the basis for the action taken shall be sent to the

Department of Justice.

(Authority: 28 U.S.C. 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671-

2680; 38 U.S.C. 512, 515; 28 CFR part 14, appendix to part 14)

[64 FR 47112, Aug. 30, 1999]