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]

"His wife keeps telling me that she does not need the money from the VA but what about other Vets being treated."

If she doesn't wish to purse this, nothing can be done.

"but what about other Vets being treated."

I was talking to a very well known veteran's attorney a few years ago about 1151 claims and he was absolutely shocked at something I said.He had handled a few 1151 claims and yet I had to prove what I said to him.

It is this- Successful 1151 claims are just that.

The VA makes a determination and if the vet or widow has succeeded on the claim=VA makes an award of comp under 1151 and it is over.

NOTHING is done to sanction any doctor involved.

FTCA is different.

Once a settlement is paid then the VA is mandated to report the amount of the settlement and any doctors involved in the settlement decision of negligence- to the NPDB. National Practitioners Data Bank.

Most if not all states then pick this info up via their Department of Health and Human Services and post all FTCA or other types of malpractice settlement awards by the doctor's name in a public internet Data Base and then the amount "charged" to the doctor (VA or non VA) and this data bank is used by the public ,lawyers,future employers etc to reveal any past negligence awards against them.

The problem is- the GAO in 2006 I think it was - found the VA was not reporting all malpractice awards to the NPDB.

VA responded with the idea that they would fix the problem.

I have been investigating this issue for years.

They didn't report my settlement or any VA doctors who killed my husband to the NPDB.That means they have more than likely failed to report MANY doctors to the NPDB that were involved in any FTCA settlement case.

The OGC has given me many excuses,some quite bizarre (and documented) but most recently however ,when I had to fight them for my offset money and I brought the NPDB matter up again-they did not have any more excuses to come up with.

Every time the VA fails to honor the NPDB mandate and agreement-regarding a VA malpractice case- this means those negligent doctors could go on and harm or kill other veterans.

"but what about other Vets being treated."

Th VA saves lives every day. I know there are MANY MANY great VA doctors, nurses and employees at every level.

Every vet and their spouse however should be fully aware of what their medical records contain.If something doesn' t seem right or they dont understand some things in the records,or are reluctant to ask their VA doctor to explain it, the internet has made it very easy these days to comprehend most medical tests and entries in the clinical record.

It is really up to every veteran, as a VA patient, to try to determine if their VA health care is appropriate.And in MOST cases I am sure it is.