1151 Or Federal Torte Claim

[Veteran43]

Is there anyone out there thats knows if you are entitled to file both? I had a nerve cut during a routine Hernia operation. It was at the V.A. hospital in Mpls. I am going to have to take nerve block injections every 2 months for the rest of my life or I cannot walk. Can anyone tell me what I should do?

[Berta]

Yes - I filed both FTCA and also Section 1151.

I won both.

There is an offset consideration in 99 % of all claims of this type.

I am in the 1 % whose offset the VA recently had to refund to me- --too detailed to discuss why- I had a First of its kind claim-per NVLSP.

In the 99 % left the VA will offset the amount of your FTCA award from any Section 1151 comp you get until the settlement is recouped by the VA.

But that applies only to the 1151 compensation-the rest of your SC comp cannot be touched.

For those who might be in the 1 %-

The OGC and I agreed on an offset amount to my DIC under 1151 in 1998.

I had won wrongful death settlement.They malpracticed on my husband to cause death by VA.

I re- opened in 2003 because I found more malpractice- and it regarded an agent orange condition malpractice on that significantly contributed to his wrongful death. I cou;ld not sue them again so I re opened the DIC claim on a different basis.

Long story -I was awarded last year a direct SC death and then had to fight with the VARO to refund the offset amount they kept from my 1151 DIC - as the new SC death award trumped the wrongful death award and rendered it moot- to the extent they had to refund my offset.

I never saw a similiar case like mine.

For some vets it is more beneficial to file 1151 and not FTca. Unless they can invest a large lump sum settlement from the VA-they could easily spend it all fast and then not have the security of a 1151 comp check every month.

[Berta]

Yes - I filed both FTCA and also Section 1151.

I won both.

There is an offset consideration in 99 % of all claims of this type.

I am in the 1 % whose offset the VA recently had to refund to me- --too detailed to discuss why- I had a First of its kind claim-per NVLSP.

In the 99 % left the VA will offset the amount of your FTCA award from any Section 1151 comp you get until the settlement is recouped by the VA.

But that applies only to the 1151 compensation-the rest of your SC comp cannot be touched.

For those who might be in the 1 %-

The OGC and I agreed on an offset amount to my DIC under 1151 in 1998.

I had won wrongful death settlement.They malpracticed on my husband to cause death by VA.

I re- opened in 2003 because I found more malpractice- and it regarded an agent orange condition malpractice on that significantly contributed to his wrongful death. I could not sue them again so I re opened the DIC claim on a different basis.

Long story -I was awarded last year a direct SC death and then had to fight with the VARO to refund the offset amount they kept from my 1151 DIC - as the new SC death award trumped the wrongful death award and rendered it moot- to the extent they had to refund my offset.AFter I raised hell with some OGC lawyers who remembered me well from the past settlement-the VA sent me the offset refund.An amount they had originally said I would never get. right watch me

I never saw a similiar case like mine.

For some vets it is more beneficial to file 1151 and not FTCA. Unless they can invest a large lump sum settlement from the VA-they could easily spend it all fast and then not have the security of a 1151 comp check every month.

[Veteran43]

Thanks Berta!

[Berta]

I need to add something here-

when I sent in my FTCA case, I tried to get a lawyer here in NY. This was prior to the internet as it is now with google and also during the days-late 1990s when lawyers could not advertise by specialty.

After 20 NY lawyers told me I had not a chance in Hell to succeed, I decided to do the FTCA myself.

Glad I did. It was considerable medical and legal work but I won anyhow.

Is your lawyer a malpractice lawyer or is his area of expertise something like estates, wills, or GP stuff?

Is he aware of the two most common errors made on FTCA SF 95 forms?

If I were you I would google this lawyer to make sure he or she has background in FTCA.

I had a lawyer in NY handle a lease for me.

As we talked (he is disabled vet) he asked about the AO claim I had pending, Then he did all he could to get me to hire him to represent me on the claim.

Another lawyer handling a CUE claim I had also wanted to somehow get his hands on my separate AO claim.

The NOD for the AO claim was filed in 2004 and therefore I did not fall under the Lawyer for vets regulations for the AO claim.I had to word the fee agreemnt myself to specify only the CUE claim and then I tore it up and revoked my POA with him.

I recalled what Tom Hanks told Denzel WAshington in "Philadelpha" when no lawyer would represent him in a AIDS discrimintion case against the law firm he worked for---

"I dont need a lawyer, I am a good lawyer"

I myself had handled numerous legal matters pro se over the years and reminded myself that I am a good pro se lawyer too and sure didnt need any lawyer who knew less than I did about these types of cases.

The lease lawyer I had- once he realized he needed to become fully accredited by VA to handle any claim I had- said he would have depended on me anyhow for what he didnt know. yeah right- he thought I would pay him while I did the leg work.

The best lawyer I ever had was me going pro se-

the best reps we will ever have is ourselves-

Having said said that- a good malpractice lawyer can succeed in a good malpractice claim.There are pleny of awards if you google them against the VA for malpractice.

Make sure you get a lawyer who really understands not only FTCA but also the ramifications of the separate 1151 claim and its monetary impact due to any potential FTCA award.

And dont call my lease lawyer here in NY.

A podiatrist cant due brain surgery-that is point I am trying to make.

Edited June 11, 2010 by Berta