Sec 1151 Claims

[Berta]

Although there already is 1151 claim info here-I wanted to get a topic closer to the forefront as 1151 issues appear here from time and time and I recently referred someone to hadit for 1151 claims help.

Section 1151, 38 USC.

These claims rest on probative medical evidence that the VA has failed to properly diagnose and/or treat a disability to the extent that their negligence has caused an additional documented and ratable disability.( or death)

The full regulation is here:

http://www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00001151----000-.html

“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

(A) 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, or

(B) by participation in a program (known as a “compensated work therapy program”) under section 1718 of this title.”

Most 1151 claims rest on (A) and (B)and (B) 2.

I always say that malpractice and negligence has a paper trial and if it has occurred due to VA health care ,evidence of it will be found in the veteran's VA medical records.

Or the omission of proper care will be evident in the medical records.

For example if the vet had a blood clotting disorder and VA could have controlled this with medication

but the clinical records show their omission of any proper drug control;and the vet dies during surgery directly due to his blood clotting disease for which proper medication was 'omitted', his/her survivors have a cause of FTCA action and/or Section 1151 claim.

These claims need thorough reviews of all available medical records.Not a single abbreviation or odd symbol can be overlooked .Anything crossed out should be suspected if the records seem to indicate improper care.

The veterans Drug med profile also is significant to these types of claims.

Was the med appropriate for the disability? Was it at an appropriate dosage?

Were side affects monitored?

If the med recs say W/U for something specific or indicate any follow up care was it done?

Does the treatment correspond with what any non VA doctor would have done?

How did the alleged negligence harm the veteran? (in other words what additional disability does the vet currently have (at a ratable level) that occurred solely due to alleged negligence?

VA fights Section 1151 claims aggressively.They will come up with anything at all to get out of paying the claim.

The VA has doctors who can provide a medical rationale which might make no common sense or medical sense at all and they also will not provide the VA doctor opining on the claims, sometimes, with all the evidence available.

If a veteran or widow/ widower of a vet feels the veteran has not received [proper medical care from the VA and thos has caused additional disabling problems or the veteran's death ,they should consider getting an IMO (Independent Medical Opinion)

These IMOs can be costly but can also often assure the veteran or their survivor that the VA did in fact give adequate and proper medical care.VA does save lives every day.

However,if the IMO agrees with the VA negligence and the additional disability (or death) it caused [then the veteran (or surviving spouse)possibly has a 2 year time frame to file a FTCA claim and/or a Section 1151 claim.This 2 year limit however is explained in more detail in the FTCA info here.VA first attacks the Jurisdiction and then the SOL (Statute of Limits) for FTCA claims and this is why

they should obtain a lawyer for any FTCA claim.A good malpractice lawyer would hesitate to turn down handling most FTCA claims if the IMO supports the malpractice with a very strong medical rationale.

There is offset consideration to consider under FTCA and Section 1151 claims. The offset matter is another reason to have an attorney if both 1151 claim and a FTCA claim is filed.

In 99% of them the settlement under FTCA is taken from the Section 1151 comp.(called the offset or recoupment)

If the veteran or widow can prove however that the malpracticed issue is also a directly service connectable one then there is no offset to any SC comp.

Example:

I agreed to an offset with OGC in 1997.Wrongful death FTCA case.

My DIC was recovered by the VA month after month for many many years.I had received a settlement under FTCA so they VA could not pay me twice for the same claim basis.

I reopened and proved direct SC death.

The VA had to refund the offset amount to me.

It did not change the FTCA settlement- but it trumped that decision.

I recommend that a lawyer handle any FTCA claim.It is far easier than doing it yourself. The OGC lawyers are VERY smart.I respect them as they do their job well.

These are some successful Section 1151 claims:

http://www4.va.gov/vetapp09/files2/0913023.txt

http://www4.va.gov/vetapp09/files2/0910681.txt

http://www4.va.gov/vetapp09/files5/0942581.txt

In each case the medical evidence of negligence was profound and undebatable.

http://www4.va.gov/vetapp05/files2/0509575.txt Re 1151 decision regarding FTCA award of $164,471.22.

http://www4.va.gov/vetapp03/files/0315675.txt recoupment offset to $200,000 FTCA award

http://www.veteranstoday.com/2010/06/23/veteran-awarded-600000-for-va%E2%80%99s-failure-to-refer-him-for-medical-treatment/

U.S. 10th Circuit Court of Appeals. $600,000 award

“In the 2006 fiscal year, the Judgment Fund of the U.S. Department of Treasury paid $67.1 million to settle Veterans Affairs malpractice claims across the United States. During that time 225 claims were settled for $23.8 million, 138 lawsuits cost the department $38.3 million and eight judgments cost $5 million. “

http://www.lawyersandsettlements.com/features/veterans-malpractice-rights.html

[Berta]

Sorry for double posts- couldnt delete the second one

I just read over all FTCA and 1151 info on the VBM by NVLSP- this info here can't come close to all aspects of these claims but I covered the basics-

but I forgot to add one thing.

Get copies of your complete VA medical records and copy of C file BEFORE you attempt to file either FTCA or Section 1151 claims.

Once VA sees a Section 1151 claim or anything that suggests you might consider 1151 or FTCA they often write 1151 all over the files and will try to hinder any attempt you make to get the records you need.

You need these records to fully determine if you in fact really have a cause of action and then to prove it.

[Pete53]

Can a proper diagnosis but poor treatment and ineffective meds which lead to suicide due to loss of hope by Veteran be a proper 1151claim?

[carlie]

Pete,

I think she might have a chance at it - the main thing would be to file the claim now.

We have a member here - sorry but I don't remember her name, anyways she got some DIC benefits I think

and the reason was because her husband (the vet) died because he wouldn't go to the doctors

because of his PTSD.

[Berta]

Some meds can cause "suicidal ideation" in a vet or civilian who normally would not even think of suicide.

The Chantix horror story is a good example. (available at VA Watchdog under search)

It would take a strong independent medical opinion to show that a veteran committed suicide solely due to a VA medication.

If the vet however relayed feelings of hopelessness to a VA psychiatrist and these feelings were well documented ,along with obvious suicidal ideation (in their clinical record)and maybe even past hospitalizations for suicidal thoughts-then there is possibility of Sec 1151 award if the VA shrink did not act on this and their omission of proper medical treatment and intervention at that point might be a basis for 1151.

I would think however they would have to already have had a diagnosis of a severe mental disability and have treatments records with the VA for it.

[Pete53]

He had a painful disease service connected by VA and early on received food routine treatment. Good enough not to use his private insurance. He was not treated very well for his problems when it got worse. He was not managed and although he was sent to outside specialists over a period of 4 months nothing was really done. He did see a VA shrink and was prescribed meds for depression.

Some of the things that happened and are documented. The VA let him lie in an ambulance while they decided to admit him. After the 11 hours they told him that he could not come to VA for pain treatments and to get used to it cause that is how the disease works. A golfer had the same thing and was given medication that allowed him to play competitive golf in 2 weeks.

They ordered wheel chairs, canes, rollators told his wife that she would have to handle catheter.

His wife keeps telling me that she does not need the money from the VA but what about other Vets being treated. They took his hope away from him when they told him he would never get better and to quit coming to the VA for pain management.

[john999]

What if you follow VA doctor's orders and take pain meds as directed and end up as drug addict? If the VA keeps you on a steady dose of narcotics for 6 years what do they expect is going to happen?. They always blame the vet. You know the VA addicts many thousands of vets. Then they start blaming the vet for being a "drug seeker".