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Is This A 1151 Claim?

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KennyJ

Question

I was recently diagnosed by VAMC stomach disorder and acid reflux. In the past I have been on several nsaids. One time an incompent doctor had me on 3 at same time which is a medical no no. I was told by VAMC doctor today that since I was taking nsaids on a daily basis up to 3 times a day, that I should have been on some type of stomach medicine. VAMC never recommended any type of medicication for protection to my stomach and esophagus. Their non recommendation has lead to my problems. Is there any way that I can get any compensation from this.

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  • HadIt.com Elder

U.S. Code as of: 01/26/1998

Sec. 1151. Benefits for persons disabled by treatment or vocational rehabilitation

(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected.

For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct AND -

(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was -

(A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; OR

(B) an event not reasonably foreseeable; OR

(2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title.

(b) Where an individual is, on or after December 1, 1962, awarded a judgment against the United States in a civil action brought pursuant to section 1346(b) of title 28 or, on or after December 1, 1962, enters into a settlement or compromise under section 2672 or 2677 of title 28 by reason of a disability or death treated

pursuant to this section as if it were service-connected, then no benefits shall be paid to such individual for any month beginning after the date such judgment, settlement, or compromise on account of such disability or death becomes final until the aggregate amount of benefits which would be paid but for this subsection

equals the total amount included in such judgment, settlement, or compromise.

Source

Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1124, Sec. 351;

Pub. L. 87-825, Sec. 3, Oct. 15, 1962, 76 Stat. 950;

Pub. L. 91-24, Sec. 3, June 11, 1969, 83 Stat. 33;

Pub. L. 94-433, title IV, Sec. 404(19), Sept. 30, 1976, 90 Stat. 1379;

Pub. L. 98-223, title II, Sec. 213(1), Mar. 2, 1984, 98 Stat. 46;

renumbered Sec. 1151 and amended Pub. L. 102-83, Sec. 4(a)(1), 5(a), Aug. 6, 1991, 105 Stat. 403, 406;

Pub. L. 104-204, title IV, Sec. 422(a), Sept. 26, 1996, 110 Stat. 2926.

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  • HadIt.com Elder

MEDICAL DISABILITY [Section 1151] VERSUS MEDICAL MALPRACTICE [TORT]: COMPENSATION FOR INJURY/DISABILITY AND THE DEPARTMENT OF VETERANS AFFAIRS by JENNIFER DOWD WHITTINGTON, J.D.

http://www.afip.org/Departments/legalmed/openfile97/va97.pdf

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As long as you can prove additional documented disability(at ratable level)-and I think you can-just send them:

VACO C file number name adress etc (send certified)

To whom it may concern:

This is a claim under Section 1151 ,38 USC.

I fully believe that my VA medical records will reveal that I have received medication which has been inappropriate and improper medical treatment, when compared to medical standards regarding same as found consistent with the usual medical community and as a result of that medical error, on VA's part, I have acquired an additional disability.

Just sign it and see how they respond.

I never tell them too much in 1151s because it gives them a chance to put their foot in their mouth and they might find out more errors then just the medication one.

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As long as you can prove additional documented disability(at ratable level)-and I think you can-just send them:

VACO C file number name adress etc (send certified)

To whom it may concern:

This is a claim under Section 1151 ,38 USC.

I fully believe that my VA medical records will reveal that I have received medication which has been inappropriate and improper medical treatment, when compared to medical standards regarding same as found consistent with the usual medical community and as a result of that medical error, on VA's part, I have acquired an additional disability.

Just sign it and see how they respond.

I never tell them too much in 1151s because it gives them a chance to put their foot in their mouth and they might find out more errors then just the medication one.

Hi there Folk's

This brings up another question about my case. What if it wasn't the VA but the military that performed the actual act of malpractice. Where do I go then...?

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There is no way to go on military malpractice-

the Feres doctrine prohibits claims like this against the mil-

http://www.dod.mil/dfas/retiredpay/concurr...rdpandcrsc.html

Having said that-however- wasn't there a few anthrax lawsuits against the mil?

One thing is for sure-once an active duty person becomes a veteran- time ticks away anyhow and there could well be a military Statute of Limits even if someone could get around the Feres doctrine somehow-

If a VA hosp continues a malpracticed event -like say the mil said you had a condition that you really didnt have- and then the VA-without proper testing and assessment -continues to medicate and treat you for this erroneous condition-overlooking the actual cause of it- to your detriment-you could potential succeed in a Sec 1151 claim or a FTCA claim if you are within the 2 year statute for FTCA-against the VA not the military.

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