Ftca Question

[Blessedmom]

Good Afternoon

I have just a quick question about FTCA statue of limitations. I have read two different things concerning the statue of limitations.

1. The statue of limitations is 2 years. Does this two year include actually sueing the government after they have, for example, denied or did not respond to the SF 95? Somewhere I read it did. But my understanding from all the other readings is this --if an act occurred on June 2009 then you have until June 2011 to sumbit an administrative claim SF 95. Please let me know if I am right or wrong. I tried finding the actually law written on it, but could not find it mentioning the 2 year frame. I am still wanting for my lawyer to submit paperwork. My husband passed in June 2009. Do I have until June 2011 to submit the SF 95? Then the government has 6 months after that to respond.

Thanks so much

[Berta]

NOLO has a very brief but good explanation of FTCA and aparently they can assess a FTCA case at the link there:

"You must file within two years. You have two years from the time your claim arises to file your administrative claim with the appropriate federal agency. Because the exact date when your claim arose may be a legal issue in your case, it is important to file your administrative claim as soon as possible to avoid any chance of it being rejected as untimely."

http://www.nolo.com/legal-encyclopedia/article-29705.html

They are right as to the nuances of the Statute of Limits and the two years.

After my husband unexpectedly dropped dead , I filed my SF 95 within 3 months --- as soon as got his VA med recs and realized they caused his death.

He had filed a Section 1151 6 months prior predicting his own death and I also reopened that.

I had 2 years from death in my opinion as the Statute of Limits as this is when the claim arose.

This SOL date was never an issue with the General Counsel when they handled my case.

I wonder what your lawyer is waiting for.Does he had the complete clinical record from VA?

[Berta]

Have you googled your lawyer and/or asked him/her for link to some of his successful FTCA cases?

I mentioned before that 20 dopes (ooops lawyers) turned me down years ago to handle my FTCA and one who did want to handle my case didn't know anything about FTCA and kept calling me into his office to figure out what he should do with the case.

Good thing I had no contract at all with him.

When I filed A writ at the court years ago-the renown vet's lawyer Ken Carpenter called me up.

I asked him point blank for some COVA cases he handled and he gave me a list.He is one of the BEST for VA claims at BVA/CAVC.

A lawyer with FTCA experience and some good awards under their belt will not be offended if you ask them about their expertise.

[carlie]

I believe the claimant has two years FROM WHEN THEY BECOME AWARE, that a tort had been committed,

to file the claim in federal court.

[Berta]

Carlie- this is what I always held to for FTCA. Two years from awareness of malpractice.

But VA lawyers are incredibly smart- I have very high respect for them even though they were adversaries to me.

Early this year I had to fight with them again on something I knew I would succeed on.Throughout this ordeal I must admit I was thrilled to talk again to some of them who had worked on my FTCA case.

VA lawyers know 38 USC in and out and backwards-intellect we just dont find at many ROs.

They are smart as can be so we have to be smarter and if filing FTCA-a claimant these days needs the best lawyer they can get.

When a FTCA claimant becomes aware of malpractice and holds to that date on a SF 95 ,this can be a SOL bone of contention to the VA.

For example-I had a meeting with the VAMC Director 6 months before my husband died regarding some of my concerns as to his PTSD treatment. Had I waiting 2 years past that meeting date to file FTCA ,they could have said my case was out of the SOL.

I was not aware of documented malpractice at that time -only some medical errors they had corrected already-

Oddly enough I ended up using the director's notations in the C file for my FTCA claim.He had recommended another improper medication and luckily no one prescribed it.

The VA lawyers will attack a FTCA case in any way they can. That is their job.

This spouse's lawyer might well have very good reason for not determining the SOL date yet for the SF 95 and I was too tough on them here-and it does appear this widow has plenty of time.I apologize for that.

A lawyer will need to review the entire clinical record to determine the SOL and then file the claim accordingly.

[carlie]

Berta,

You really had me going for a moment.

At first, without reviewing the entire thread I was taking SOL

to mean sheet out of luck :-)

[Berta]

That was Funny Carlie!!!! LOL

The VA wished it DID mean s--t out of luck for all FTCAers.

I am trying to stop talking here in acronyms but it is Very hard to do!

[carlie]

That was Funny Carlie!!!! LOL

The VA wished it DID mean s--t out of luck for all FTCAers.

I am trying to stop talking here in acronyms but it is Very hard to do!

This was kind of like ED.

ED = Effective Date or ED = Erectile Dysfunction.

There are actually quite a few like this. I figure if someone doesn't know

the acronyms, they will ask and learn and hopefully begin using them also

as it saves posting time and is a bit easier.

[Blessedmom]

Hi Berta and Carlie

Thank you so much for your reply. I really have no idea what is going on with the case of my husband. The funny thing is I have 2 sets of lawyers. This particular firm my in laws had contacted does not handled FTCA cases. (I was unaware of this until later--(long story). Anyway, the lawyer over there have been very nice and helpful to me. He decided to research and call around for a good lawyer/law firm for me. Everyone pointed in the direction of this particular law firm which handles FTCA cases and was good. They decided they was going to look into the case. They found a doctor who would testify in court that they believe it was malpractice. This doctor told them they needed to find another doctor also. So basically it would be 2 doctors testifying and not one. They was on the seach for the second doctor. The second doctor said that he did not believe it was malpractice. The law firm did not give up and decided to look again for another doctor. They did find one. So basically there are 2 doctors whom will testify that they believe it was malpractice. This took about a 10-11 months. Now I have signed the contract and waiting for them to sign. It has been about 6 weeks now. It is just a little frustrating because it does not seem like it is moving. To answer your question Berta, (sorry, I wanted to give you the meat of it first), they do have all the records and x rays. I got all of them myself from the VA and forwarded to the lawyers. I feel I am stuck. So basically, my lawyer is signed on as a co-consuel with the other firm. I hope that make sense. I do not know what to do except wait.

Thanks

[Blessedmom]

Oh, by the way, what is SOL.

Thanks

[carlie]

Hi Berta and Carlie

I feel I am stuck. So basically, my lawyer is signed on as a co-consuel with the other firm. I hope that make sense. I do not know what to do except wait.

Blessed,

Just so you know and they don't swindle you - only one can get paid and I guess it would be up to

that one to pay any funds to the other one.

Also, this is taxpayer money and they are capped at either 20 or 25 %, I don't remember which.

Get a fishing pole or take up knitting as this will not resolve quickly.

When the claim is filed in Federal Court the judge will probably order mediation.

JMHO

[Blessedmom]

Hi Carlie

Thanks for the added info. Oh, I just saw what SOL state for --statue of limitations.'

Thanks again

[Berta]

It sounds like your evidence is excellent and the lawyers are doing their job.

Have you formally filed a Section 1151 claim yet or have they advised you not too?

One thing about 1151 claims when a FTCA is also filed--- there are offset provisions in the regulations- VA will not pay twice for malpractice.*

However I legally circumvented part of that regulation-because of my legal standing regarding the Surrogate's office here in NY- there is a lot to all the nuances of FTCA-your lawyers will advise you on all that if you do succeed in 1151 claim as well as FTCA.State laws can come into play-etc etc.

*

Years after I settled with VA I found additional malpractice.

The additional malpractice condition was DMII from AO (Vietnam)

I could not file another FTCA charge-they only award once under FTCA and 1151.

It took me days to shape the claim to make sure they could not reject it on a double dip basis.

I had to word it very carefully.

I proved it was in fact a AO disability that caused my husband's death that through their already admitted malpractice -should not have occurred.

There is no other claim like mine.

Any FTCA death should also be considered for direct SC potential.

FTCA should be filed first but years later evidence could turn up that would also support a direct SC death finding.

In any case like that they MUST refund the offset they withheld.

I would be quite willing to offer my OGC contact info and letters to the OGC to anyone out there in similiar circumstances if the VA refused to refund their offset.

I would even call the OGC myself for them if that would help-

After my award letter came for direct SC death- trumping the 1151 award-it took VA almost an additional year of argument with me to refund my offset.

This was unconscionable and no one else should ever go through that.

Then again the OGC never had a case like mine before.They remember it well now however.

[Berta]

To clarify-

on a wrongful death the Section 1151 claim award involves DIC under 1151.Not the same as DIC for direct SC death. All that info is here at hadit.

It is the DIC that becomes "offset".

If there is no DIC award there is nothng to offset.

I advises a friend of mine as to his potential for both FTCA award and 1151 the same day I wrote his 1151 claim.

He thought it over and didnt want to pursue FTCA for many reasons.

He gets 100% P & T and SMC comp every month now under 1151 and said he might have spent a big lump settlement in a weekend!

And once any settlement money was gone there would have been no 1151 comp every month.He made the right decision. He got another retro of thousands on additional SC claim and spent that all in a few days.

[Blessedmom]

Hi Berta

Thank you for the info. You are wealth of knowledge. I have not yet spoken to my lawyers. I will speak to them on the matter of the 1151 claim and what I should do. I know you had advised me on a previous post about the 1151, but I guess I was trying not to overload the VA with claims. I have two other claims with my particular disability --adding my son to it and taking my husband off. Nevertheless, I will consult my attorneys. Please give me your advise on how to proceed with this. ---It was found in my husband's medical records that my husband died of a blood clotting disorder as I previously stated in another post. which according to studies and the independent doctor, he had been having for years. Before that discovery, I knew something was wrong when I started going through my husbands records and trying to piece everything together. So basically, I hired my own radiologist and got a second opinion and found out that they misread the x-rays. I have two written statements by two different doctors stating that there was a blood clot present on the x-ray. This blood clot was not treated by the doctors. They did not know it was there. Their radiologist (VA) misread the x-ray. I sent them the same x-rays that the VA doctors look at. So basically is this just one big claim for 1151-blood clots and x-rays. Does that make sense? Please help me to understand. I know you said you can not sue twice.

Thanks so much