1151

[sbrewer]

I've written about this before, but I think I might be confused about something...

My husband had toe surgery(non sc), and the podiatrist screwed up the toe. He is still having severe pain, which he had before the surgery(had to go to red team and get a shot today) and now the toe joint is fused together and will not bend. His podiatrist will not have anything to do with him and his primary care dr. sent him to PT which he completed to no avail and tomorrow he sees a neorologist. Anyway, he filed an 1151 claim which was denied I beleive they said it was not due to his sc condition. Well, no it wasn't, but don't you still file an 1151 for this or is there something else? His so has filed a nod or whatever you file but we have not heard anything else. Any ideas would be appreciated. And what about a tort?

Thanks,

sbrewer

[john999]

Berta will know the answer to that!

[foreveryoung]

This is what was posted on the questions I had about 1151. Also I believe you have 2 years from the date you claim something happened to file the Tort claim.

Hope this helps.

Section 1151 requires that injury or death be proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” or by “an event not reasonably foreseeable” in VA’s furnishing of hospital care, medical treatment, surgical treatment, or examination.81 In other words, the statute requires either fault on the part of the VA (referred to in the statute as “carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault”) or an accident (referred to in the statute as “an event not reasonably foreseeable”). The prior version of the statute that was in effect prior to October 1, 1997, discussed in Section 4.3.2, did not require evidence of fault or accident for compensation to be allowed. (Both versions of the statute disallow compensation where disability or death resulted from the veteran’s willful misconduct.)82

The explicit fault or accident requirement makes Section 1151 claims more difficult to win than previously.83 Many claimants need to obtain a medical opinion on the question of fault in order to succeed. Under regulations that became effective September 2, 2004, most of these claims must meet certain causation requirements, i.e., show that VA care actually caused additional disability or death, and either establish that VA failed to exercise the degree of care expected of a reasonable health care provider or establish that VA furnished the care without informed consent.84 VA’s requirements are in line with civil medical malpractice standards, which typically require a showing of proximate cause and consider how a reasonable health care provider would have acted under the circumstances. The main difference between a civil medical malpractice case and a Section 1151 claim is that there is a lower standard of proof applicable to VA claims. The standard of proof in most civil cases, including medical malpractice, is the “preponderance of the evidence” standard. For VA claims the standard of proof is lower — the “benefit-of-the-doubt” — in order to prevail on any issue material to a claim a claimant need only show that the positive and negative evidence is in approximate balance.85

The following are requirements for a successful Section 1151 claim under the regulations effective September 2, 2004.

4.3.1.2 Requirement That VA Care or an Event Not Reasonably Foreseeable Be the “Proximate Cause” of Additional Disability or Death

4.3.1.2.1 VA Medical Care, Treatment or Examination and Proximate Cause

4.3.1.2.2 Events Not Reasonably Foreseeable and Proximate Cause

4.3.1.2.3 Training and Rehabilitation Services or CWT and Proximate Cause

The VA defines “proximate cause” as “the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.”88 Proximate cause, then, requires that that VA care be a direct cause of disability or death.

Footnotes

88. 38 C.F.R. § 3.361(d) (2005).

4.3.1.2.1 VA Medical Care, Treatment or Examination and Proximate Cause

In a case where it is alleged that VA medical care, treatment or examination proximately caused the disability or death there are two requirements under current regulations. First, “actual causation” must be shown. To establish actual causation the VA requires that the VA care result in the veteran’s additional disability or death. The fact that a veteran received VA care and now has an additional disability or died is not sufficient to establish causation.89 If the VA’s failure to timely diagnose or properly treat a condition causes the continuance or natural progress of a disease or injury, that may be the basis of Section 1151 benefits.90 Also, additional disability or death that results from a veteran’s failure to follow medical instructions would not be considered “caused” by VA care.91

In Loving v. Nicholson,92 a veteran claimed Section 1151 benefits for a knee condition that resulted when a ceiling grate fell on his knee during a VA examination. The Court held that the injury to the veteran’s knee was coincidental to the VA examination and was not caused by it. “Caused by” was defined as requiring the “existence of a logical sequence of cause and effect” showing that the VA examination or treatment was the reason for the disability.93

Where the basis of a Section 1151 claim was a sexual assault by a VA physician during examination or treatment at a VA facility, the VA General Counsel determined that the veteran could receive disability compensation if the actions that were alleged to have constituted the assault would fall within the ordinary meaning of the terms “medical treatment” or “examination,” (assuming all other statutory requirements were fulfilled).94 This GC opinion considered the earlier version of the statute and is discussed in further detail in Section 4.3.2.

There are two separate methods available to meet the second requirement for establishing that VA medical care, treatment or examination proximately caused disability or death:

(1) Show that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider;95 or

(2) show that VA furnished the care without the veteran’s (or, in appropriate cases where the veteran lacks decision-making capacity, the veteran’s surrogate) informed consent.96 The VA determines whether there was informed consent by referencing 38 C.F.R. § 17.32, describing VA’s procedures for obtaining informed consent.97 Briefly, informed consent is defined as “freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment.”98 The practitioner must explain the treatment in understandable language and discuss the expected benefits, reasonably foreseeable associated risks, complications or side effects, reasonable and available alternatives, and anticipated results if no action is taken. There must be an opportunity to ask questions, to indicate comprehension of the information, and to grant permission freely without coercion.

4.3.1.2.2 Events Not Reasonably Foreseeable and Proximate Cause

VA determines whether an event was not reasonably foreseeable based on what a reasonable health care provider would have foreseen.99 The event does not need to be completely unforeseeable or unimaginable, but it must be one that a reasonable health care provider would not consider an ordinary risk of the treatment. Relevant to this issue is whether the event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures.

[Berta]

That post from foreveryoung is exactly what the claimant has to prove.

Toe disabilities are rated by VA as within this BVA case:

http://www.va.gov/vetapp93/files2/9319860.txt

It was good that the VA considered that this could be possibly secondary to a SC disability-

but still they should have addressed the evidence under Sec 1151.

They need to know what level of pains, and what meds for pain this caused and also if the vet requires special orthopedic shoes, is there any athritic involvement , affect to other toes, range of motion, balance etc-etc-

"The rating schedule provides for a maximum 10 percent rating for

metatarsalgia (foot pain) (Code 5279); hallux (great toe) valgus which

is severe and equivalent to amputation of the great toe, or which has

required an operation with surgical removal of the metatarsal head

(Code 5280); or hallux rigidus (Code 5281).

Moderate residuals of foot injuries warrant a 10 percent evaluation.

A 20 percent evaluation requires moderately severe residuals. 38

C.F.R. Part 4, Code 5284."

If you put Toe into the BVA browser ,claims will come up showing SC ratings for toe disability.

Did they give his toe a NSC rating?

[sbrewer]

Thanks everyone..

Berta,

"It was good that the VA considered that this could be possibly secondary to a SC disability-

but still they should have addressed the evidence under Sec 1151."

They said it was not due to his sc condition.

However, he saw a neurologist today and he said "exploritory surgery? why did he do that?" (referring to the podiatrist) He also sent him for neck x-ray and B-12 blood work, said it could be either of those(he was being given a b-12 shot ordered by his primary care dr. and the last time he went to get one they would not wait on him so he went back to work, he also works there). Anyway, on his last app. with primary care, she was told this story, so she just said she would check it againg in 6 months...

Back to the neurologist. He also stated that the toe pain could be from depression..which he is sc for, however he probably did not put this in his records as well as what he said about the podiatrist..

"Did they give his toe a NSC rating?"

No, they just flat out denied the claim.

His so has submitted a nod or whatever you do next, but now I'm wondering about weather he should file it secondary to depression...sounds odd to me, but that's what the dr. said about the toe this morning.

Thanks,

sbrewer

[Berta]

If they did not rate his toe at all- even as "0" % NSC that doesn't make sense-

The Vet rep or SO would have their Blue rating sheet and it would be on that-

If it is at "0" % , only medical evidence can alter the rating and at "0" it does not fall within Sec 1151 criteria:

1. proof of medical error

2. documented medical proof of additional disability due to the medical error.

[sbrewer]

Berta,

Here's an interesting update on this situation.

Husband went and picked up records today with C&P from (sucess stories thread) also neck x-ray and blood work ordered by the Neurologist which he saw 6/15 for his toe problem. Now during his exam the Dr. said the toe pain could be related to depression(which he was just increased to 50%). Well, we figured he would not put this in his records...wrong....he did put that the toe pain was from psychological (something I can't remember the exact wording). He also put NO MORE SURGERY on this toe. He told him the Podiatrist should have never done surgery. But didn't put this in the records.

Now, my question is since his SO has filed a nod for the 1151 claim, could this be secondary to depression or what do you think?

Thanks,

sbrewer