Ftca Explained

[Berta]

FTCA info- VA itself publishes all there is to know as to the legal aspects of FTCA:

http://docs.google.com/viewer?a=v&q=cache:PlR4EfXlVFMJ:www.benefits.va.gov/warms/docs/regs/38cfr/booka/part14/s14_600.doc+FTCA+Veterans+aDMINISTRATION&hl=en&gl=us&pid=bl&srcid=ADGEEShfpP591o-YGaXP8mqRAmeBVk8DnySQExEuq6bGiGIyP01VpNjVtwSqWv7AeDXLXIlekXywOSno6_HBqcGXPpf50sGvCNXxRPmUY-trv9MRkqTDsI9BiCoxuQyD91e8XGYmbhIR&sig=AHIEtbSOPc4PGZEoFO8BpPXpvYODCjhb3Q

Robb Graham and other malpractice attorneys on the net expand on these regulations:

http://www.vamalpractice.com/

NOLO expands on te4 FTCA regs:

http://www.nolo.com/legal-encyclopedia/suing-government-negligence-FTCA-29705.html;jsessionid=133E5509440BB79CA52C0A42129829F7

NVLSP expands on the FTCA regulation and the nuances of Section 1151 claims as they can impact on

monetary damages from these types of claims if they are filed simutaneously.

VBM NVLSP any edition.

State laws govern many settlement caps under FTCA. Your state will have info on that which is googleable.

If you feel you have FTCA issue but dont like to read- hire a malpractice lawyer as they know above stuff in and out.

[Bigred122]

I'm still missing something, please help. How is FICA different from 1151 claim? What's the difference? If you file both can you win both? Or u only win one or the other? What's the fine line to figure out what claim to file? Very confused here. Please help. Thank you so much.

You must file the Tort claim within the first two years and most of the time you can be reward better financially. The 1151 has no time limit that you must file within reason and the rewards are usually less. But at least you have some method to be compensated for medical mistakes. Good Luck! Been fighting for my 1151 now for over two years and I have more time to wait! BigRed

[Berta]

My neighbor reads as a guest and asked me to help you.

I have retired from claims advocacy and found under a search, that I already had given you much advise here in the past.

The possible Section 1151 issue your husband had came up here 2 years ago and I responded to those posts. I believe the FTCA issue is not even applicable here any more due to the 2 year Statute of Limits.

If your husband receives military retirement he would need a service connected rating of at least 50% service connected in order for CRDP to kick in and for him to have any monetary benefit from VA in addition to the Military retirement amount,if any claim he has pending is successful.

CRDP:http://www.dfas.mil/retiredmilitary/disability/crdp.html

I mentioned at that time Nov, Dec 2010, that you need to obtain his entire medical records that you said were from VA or from VA contracting doctors.

I assume you mean contracting doctors covered under this regulation but I dont know for sure:

In late 2010 you stated here:

“ I also faxed in form 21-4142 ...to release all other med records outside VA.....very important as he has 11 outside medical contacts. I also am in the process of getting 2, possibly 3 of hubbys doctors to submitt their IMO to VA in near future.. I will also submitt something in writing myself, as spouse who is with him 24/7 . I will go into EVERY DETAIL, to outlinee SC deteriation, especially post stroke. “

If negligence occurred it must have been performed under auspices of VA, for a 1151 claim to succeed.

"USC › Title 38 › Part II › Chapter 17 › Subchapter I › § 1701

• prev
  
• next
  
  38 USC § 1701 - Definitions
  
  “There are 4 Updates Pending. Select the tab below to view
  
  
  This preliminary release may be subject to further revision before it is released again as a final version. As with other online versions of the Code, the U.S. Code Classification Tables should be consulted for the latest laws affecting the Code. Those using the USCPrelim should verify the text against the printed slip laws available from GPO (Government Printing Office), the laws as shown on THOMAS (a legislative service of the Library of Congress), and the final version of the Code when it becomes available.
  Current through Pub. L. 112-123. (See Public Laws for the current Congress.)
  For the purposes of this chapter—
  (1) The term “disability” means a disease, injury, or other physical or mental defect.
  (A) facilities over which the Secretary has direct jurisdiction;
  (B) Government facilities for which the Secretary contracts; and
  1. 
     public or private facilities at which the Secretary provides recreational activities for patients receiving care under section 1710 of this title.”
     Current through Pub. L. 112-123. (See Public Laws for the current Congress.)
     For the purposes of this chapter—
     (1) The term “disability” means a disease, injury, or other physical or mental defect.
     (A) facilities over which the Secretary has direct jurisdiction;
     (B) Government facilities for which the Secretary contracts; and
     
  2. public or private facilities at which the Secretary provides recreational activities for patients receiving care under section <a href=http://www.law.corne...t/38/1710">1710 of this title.”
     

  Source 38 USC 1701 and this is within M21-1MR as well. It can be googled.

  It pays to post Section 1151, 38 USC again as to how the contractual aspect of medical care kicks in to 1151 claims:

  38 U.S.C.A. § 1151 (West 2002 & Supp. 2009) provides, in relevant

  part, that:

  "(a) compensation under this chapter and dependency and

  indemnity compensation under chapter 13 of . . .

  [38 U.S.C.] 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 § 1701(3)(A) of . . . [38 U.S.C.],

  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 "

  Source 38 USC 1151.

  I saw a potential that your husband's SC 20% residuals of GSW could have been a contributing factor to his stroke ,if it had possibly caused a clot to form and travel to his brain, or due to his Atrial fibrillation. A clot forming somewhere, particularly where there has been prior injury, is not unusual in someone who has limited mobility.

  “A blood clot, also referred to as an embolism, may form in a vein or an artery in the arm. Risk factors for blood clots include obesity, a broken bone, birth control pills, traveling in a vehicle for long periods and bed rest. Recognizing symptoms of a blood clot is important because without treatment, the blood clot may travel from the arm and cause complications such as a heart attack, stroke or death, according to MayoClinic.com. “

  http://www.livestron...-clot-symptoms/

  The stronger case I saw potential for was that,if the VA or their contracting doctors per the above regulations failed to diagnose and treat his atrial fibrillation and therefore the resulting stroke occurred due to VA negligence. You mentioned here about 2 years ago at hadit that he didn't know he even had AF.(atrial fibrillation)

  Atrial fibrillation (AF) is a major risk factor for stroke, making a person five times more likely to have a stroke. About 15 percent of all people who have strokes have AF, too. People who have been diagnosed with AF have already taken the first step to preventing AF-related stroke. Unfortunately, many Americans who have AF don’t know it. Three out of four AF-related stroke can be prevented — if you are already diagnosed, Beat Your Odds&#8480; of having a stroke due to AF by understanding stroke symptoms, response and available treatments to control AF. Most Americans over the age of 40 are at risk for having AF. Take preventive steps by self-testing for an irregular heartbeat with the Check Your Pulse&#8480; technique and discuss your risk for AF and stroke with your doctor.

  http://www.stroke.or...#39;><li><br />

  • ARTICLES
    
    P A Wolf,
    • 
      R D Abbott and
      
    • 
      W B Kannel
      + Author Affiliations
      

  [*]Department of Neurology, Evans Memorial Department of Clinical Research, Boston, Mass.

  Abstract

  <a href="http://stroke.ahajou.../8/983.abstract

  There are multiple medical articles on the net linking AF to stroke.The two articles above could support his claims and could be given to the IMO doctor.

  I mentioned to obtain all medical records and to get an Independent Medical Opinion.

  We have shows in our SVR archives here with Dr. Bash who prepares IMOs.:

  http://www.hadit.com/svr.html

  Dr. Bash asked me the other day about a show covering 2 topics and I suggested 1151 as one of them. I contacted SVR host about that and the show will be posted when it is available at hadit and it might help you.

  Tnere are certainly other IMO doctors too on the internet.

  Their IMOs must conform to the IMO format here at hadit.

  Search here in the IMO forum for “{Getting an Independent Medical Opinion” Carlie added the key wording these IMOs need.

  Have you made any attempt since 2010 to obtain an IMO?

  The IMO doctor should consider the potential that perhaps your husband's SC disability could have caused the stroke, if somehow a circulatory problem or clot formed in his SC arm where the SC injury was, a clot that traveled to his brain (embolism) .

  I feel the strongest potential, however, is based on what you had posted here in the past and ,if any VA doctor had not diagnosed or treated the Atrial fibrillation in time , that could certainly have lead to the stroke.

  A good IMO doctor would consider both of these factors as well as any SC med too that could have somehow caused the stroke.( similar to my husband's 1151 stroke issue)

  If you have not raised the 1151 potential in the pending TDIU claim I feel that claim will be denied.

  If you have formally raised the 1151 issue in the TDIU claim or in a separate claim you still will need an IMO ,in my opinion, if there is any possibility at all of garnering a 1151 100% award or award under TDIU 1151.

  Did your husband have anyone on his POA (VSO or vet rep) helping with that claim?That is what they (VSOs and reps) are paid to do.

  The IMO should have a cover letter explaining the 2 aspects I have mentioned in this post and ask for a full assessment of anything in your husband's medical records that would warrant either of these possible awards or even a higher SC rating then the 20% he has now. It is possible he has been diagnosed with peripheral arterial disease in his arms and the SC 20% could be aggravating the PAD.

  Aggravation of a NSC by a SC can be compensated.

  “Any increase in severity of a nonservice-connected disease or

  injury that is proximately due to or the result of a service-

  connected disease or injury, and not due to the natural progress

  of the nonservice-connected disease, will be service connected.

  However, VA will not concede that a nonservice-connected disease

  or injury was aggravated by a service-connected disease or injury

  unless the baseline level of severity of the nonservice-connected

  disease or injury is established by medical evidence created

  before the onset of aggravation or by the earliest medical

  evidence created at any time between the onset of aggravation and

  the receipt of medical evidence establishing the current level of

  severity of the nonservice-connected disease or injury. The

  rating activity will determine the baseline and current levels of

  severity under the Schedule for Rating Disabilities (38 C.F.R.

  Part 4) and determine the extent of aggravation by deducting the

  baseline level of severity, as well as any increase in severity

  due to the natural progress of the disease, from the current

  level.

  See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b)

  (2009)).”

  In a past 2012 post you stated:.

  ”A few months after first exam, we did add unemployability, A&A and possible 1151 claims to initial rate increase claim. “ June 2012

  I hope you spelled out the “possible 1151 claim” clearly enough for the VA to add it to the VCAA letter you probably have received by now.?

  However I foresee,based on 20 years of experience ,no potential for TDIU or 100% under SC or 1151 for your husband's stroke unless you have a very strong Independent Medical Opinion to support those claims.

  There is also one other factor here. I studied Neurology to succeed in my husband's 1151 Stroke claim.

  He had 6 different strokes, in 6 different areas, all of which the VA failed to treat. They had malpracticed on his HBP, with a dosage to low to control his HBP, compounded by another medication that increased his poorly controlled HBP.

  I cannot tell what type of stroke your husband had, brain stem, Pons, cerebellar etc., hemmoragic, embolism, etc, and an IMO doctor can determine that from any CT scans and MRIs that were done and that information would help potentially support the IMO too.Of course the physical deficits he has would be on opposite side from the part of his brain that held the stroke. But the IMO doctor will need

  all available medical records to include any brain MRI and CT scan narratives.

  The IMO doctor will need his full medication profile as well. Part of my husband's 1151stroke was due to a major medication error as well as negligent treatment of his HBP. That was fond in his medication profile.

  The search feature at hadit can reveal everything here one needs to know on Section 1151 claims.

  Since FTCA has an offset to almost 99 % of all 1151 awards, and since so much time has passed beyond the FTCA Statute of Limits, since you last brought up possible negligence ,I foresee a Section 1151 claim is the only recourse here for any potential negligence or malpractice issue, and again I recommend that a strong IMO is needed for this claim.

  If your husband's Atrial fibrillation OR his HBP was inadequately treated by a VA doctor or any entity that falls under the 1151 regulations above, he has the basis for 1151 compensation for his stroke.This was the reason VA paid 100% comp under 1151 for my husband's stroke in my 2012 award letter. Inadequately treated HBP as well as the medication error involving something else.

  In late 2010 you stated here:

  “ I also faxed in form 21-4142 ...to release all other med records outside VA.....very important as he has 11 outside medical contacts. I also am in the process of getting 2, possibly 3 of hubbys doctors to submitt their IMO to VA in near future.. I will also submitt something in writing myself, as spouse who is with him 24/7 . I will go into EVERY DETAIL, to outlinee SC deteriation, especially post stroke. “

  If the 1151 issue has not been raised in his TDIU claim it must be clarified and properly claimed and I strongly suggest you obtain a vet rep to help with that.

  No personal rhetoric is needed, nor “every detail” is needed at all.

  They just need the documented medical facts.

  The most important advice I ever gave in our FTCA/1151 forum bears repeating:

  These types of claims and charges need a strong Independent medical opinion.to succeed.

  If an IMO doctor does not see evidence of negligence on VA's part, than you have Peace of mind knowing the medical care has been proper.

  Some claimants like me have succeeded in FTCA and 1151 without IMOs but I studied cardiology and neurology to do that. And in those days there were no IMO doctors around.

  I have 2 claims presently at the VA with 6 supporting opinions from VA itself that have never been considered by the VA in 18 years- also one from the UnderSecretary of the VBA,the rest from VA doctors.

  I will not hesitate to obtain an IMO if I need one for these claims. One is under Section 1151.

  My DMII AO death claim , for direct SC death, filed years after the FTCA and initial 1151 claim, was also an 1151 issue not regarding my original FTCA/1151 claim and I got 3 IMOs for that one,so I am giving you advice that I have certainly taken myself.

  If the 1151 issue has not been raised formally yet,with VA , I strongly suggest you obtain a Vet rep and print off this reply and give it to him/her to help them prepare the 1151 claim.

  Many VSOs and reps have a 1151 template they use.And there is one here under the search feature.

  And then contact an IMO doctor if you have not done that yet.

  My advise is based solely on what you stated here in 2010 with great concern as to the atrial fibrillation situation:

  “I am convinced, hubby is disabled due to VA Health Care neglIgence. He had VA clinic and outside contracted VA internist for MANY years. NEVER NEVER NEVER, did neither one of them keep him on a routine schedule of testing for checking his heart...he has been a diabetic for YEARS N YEARS, and on High blood pressure pills..and at last visit , 2 weeks stroke...perscribed cholesterol pills....They should have seen at that visit, that he is LONG OVERDUE for tests. If we had know to do heart ekko tests ever year or two..... and that heart and stroke disease was common to people with long years of diabetes...we would have demanded tests on our own! It was odvious to me ESPECIALLY... after one year after hubbys stroke...VA CALLED US AND LEFT URGENT FONE MESSAGE>>> WHICH I still have as evidence....>>>saying hubby needs to get in to clinic ASAP for appt ASAP. WHT weren't they calling us with urgent reminders PRIOR to A Fibb heart condition which led to his stroke?? I was able to uncover only ONE ekko test from contracted VA Internist in 2006... “

  "A FIBB" ..he never knew he had this problem..this caused blood clot...causing massive stroke." 2010

Edited November 5, 2012 by Berta

[Hollis]

hello Berta, so glad you are back. we hope you did ok from the storm.

[sammy104]

Thank you Berta, am printing out your above response as I type!

Re: 1151 claim, worse case scenario is, if it comes back denied, then I have 2 months to file appeal, correct? No IMO reports were included with this claim. However, will definitely have IMO help on claim thru the appeal process. Question 1. At appeal, can we submit IMOs, that were not part of initial claim? Question 2. If claim is then approved at appeal level, what is retro date? Original date of claim or beginning date of appeal process? At appeal, r u even allowed to have new IMO evident was never part of original claim. Thanks for your help.

[Berta]

'Re: 1151 claim, worse case scenario
is, if it comes back denied, then I have 2 months to file appeal,
correct?'

You have the same rights as with any VA
claim. To file the NOD within one year to begin the appeal process.

Those clowns denied my 1151 DIC claim in 1997
even with the actual settlement papers from the OGC under FTCA.

They reversed right away when I raised
hell.

“No IMO reports were included with
this claim. However, will definitely have IMO help on claim thru the
appeal process.”

It is imperative to have a strong IMO for any 1151
or FTCA issue these days.

Question 1. At appeal, can we submit
IMOs, that were not part of initial claim?

An IMO for any 1151 issue should be
submitted as soon as possible.

Question 2. If claim is then approved
at appeal level, what is retro date? Original date of claim or
beginning date of appeal process? At appeal, r u even allowed to have
new IMO evident was never part of original claim. Thanks for your
help.

The retro date should be the date of
the 1151 claim. However, in DIC claims that is different.

The date for retro on my Section 1151
wrongful death award for DIC ,was the month of the date of my
husbands death. It was a reopen of my husband's original 1151 claim.

The decision was wrong and I Cued it in
2004. They awarded the CUE as accrued SMC last year,under Section
1151.

It is still wrong but I filed new CUE
request on that.

Survivors with 1151 issues have a
different road to take on 1151 claims.

I forget.....are you the 1151er
yourself or does this regard a deceased spouse??

"At appeal, r u even allowed to have
new IMO evident was never part of original claim."

I had 3 IMos for my 2003 AO DMII death claim. This was an additional 1151 issue but I could not claim it that way.

The important thing is this, my DMII claim went to the BVA because the RO refused to consider my IMOs.

If I didnt have the IMOs (and the BVA found many copies of them in my C file, all ignored by the RO and had the copies I sent to the BVA myself)

and if that claim had been denied at the BVA level....the CAVC would NOT have accepted the IMOs. . at that point and all I could have done was hire a lawyer and hope for a joint remand back to the same RO that had refused to read my IMOs in the first place.

I know IMOs are costly. Mine cost 4 thousand and I had just paid 1,750 for another one I didnt even need, when I got my BVA award in the mail.

They are often the best investment anyone can make.For many types of claims.

Not all 1151 claims are truly 1151 negligence issues.

An IMO might not even find evidence of malpractice, and yet the IMO fee would not have been spent in vain because that IMO would give the claimant Peace of mind.

.