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A Brief Overview Of The Ftca



A Brief Overview of the FTCA

Malpractice and medical negligence can happen at any top notch private hospital as well as within the VA health care system. VA heath care is most often as adequate and proper as health care found anywhere in the world. But medical errors can happen.

Any medical error, which could be an omission of a proper medical act as well as a documented prime facie act of negligence ,and which is not corrected immediately by the VA ,could result in additional disability and even death.The Veteran who was set for surgery a few years ago for removal of a gangerous leg, woke up after his VA surgery to find the good leg had been removed by VA instead. This is prime facie malpractice. Most medical negligence is not as obvious as that case was.

If you feel your VA medical records reveal negligence and,or malpractice to the extent that they have caused you an additional documented disability, that cannot be determined to have any other cause but for negligence ,(their negligence, and not yours) in most circumstances you have a basis to file a FTCA claim.

FTCA law is vast and time consuming to read.That is what malpractice lawyers are for. Seeking a FTCA malpractice lawyer should be the first step you take.They will surely advise you to obtain an Independent Medical Opinion and will have a template that the IMO doctor can use.The IMO could be costly. The IMO might reveal no malpractice or negligence whatsoever. At that point you have spent some cash but have peace of mind knowing that no VA negligence occurred.

The SF 95 form is the first legal document you will be filing. Most lawyers want to prepare this form themselves.There is a specific type of wording that is needed in Question # 8 as to the cause of action.Your lawyer will know how to file this form with the Regional Counsel who has jurisdiction over the alleged malpracticing doctor (s) you name in the charges.

The doctors you name in the charges must be employees of the VA as defined within 28 USC 2401 (b) and further defined in this link which explains how their actions had to also fall under the scope of their duties:

The Statute of Limits for FTCA claims is most often that the SF 95 MUST be filed within 2 years of the plaintiff's awareness of the malpractice. A malpractice lawyer will be able to adequately determine the proper SOL and will refer to “equitable tolling” as within Kreger V Saiki, (8th Circuit 1994) or other cases if needed. There are other conditions that regard the SOL but a potential FTCA claimant MUST act fast if the Statute of Limits could possibly be questioned by the VA.

Once the SF 95 is filed ,the VA Regional Counsel or Office of General Counsel will ask for evidence.This is where the IMO will come in as well as all relevant VA medical records.The IMO needs to determine and reveal exactly how the malpractice occurred and exactly what resulting disability it caused.All malpractice lawyers ,as mentioned above, will have a template for that type of IMO.

What happens next:

“After you file a claim, the agency has six months to respond. While the agency is considering your claim, you do not have to worry about any time limits to file a lawsuit. However, once the agency responds to the claim, you have six months in which to file a lawsuit. “

Then again:

“As set forth in 28 U.S.C. § 2675, once a claim is received, the agency receiving the claim has up to six months to act upon it before the claim shall be considered by law to be denied. In other words, assuming an administrative claim is timely filed within the statute of limitations, suit cannot be filed for another six months. If the claim is denied earlier than six months, suit may be filed once the agency has denied in writing the submitted claim even if time remains on the two year limitation period for presentment of a claim. Once the agency's rejection period has expired, suit must be brought within six months of the denial. Otherwise, it will also be denied by the statute of limitations. See generally , Bernard v. United States , 475 F.2d 1134 (4th Cir. 1973). While some Courts have recognized equitable tolling of the limitation period due to unique factual circumstances, counsel obviously does not want to rely on a tolling argument to defeat a limitation defense. Thus, claims should always be pursued on a timely basis. “

and in part:

“A plaintiff must wait to file suit until the agency rejects the claim or if six months pass without the agency's rejection, this may be treated as a denial. 28 U.S. C. § 2675(a). If a suit is filed during the first six months after the administrative claim is filed, such an action will be dismissed by the court for lack of jurisdiction, although the dismissal may be without prejudice to refile once there has been compliance with the statute. See, Fuller v. Daniel , 438 F. Supp. 929 (N.D. Ala. 1977).

When the government is sued under the FTCA, the complaint should name the United States of America as the defendant and not the federal agency. The action may only be brought in the United States District Court, not in state court. It must also be brought in the federal judicial district where the plaintiff resides or where the negligent act or omission occurred. 28 U.S.C. § 1402(b). There is no right to a jury trial. 28 U.S.C. § 2402. If the plaintiff prevails, damages are measured by the law of the place where the act or omission occurred, meaning the whole law of that jurisdiction. Richards, et. al. v. United States , et. al., 369 U.S. 1, 6-7 (1962).”

One cannot determine ,after the SF 95 is filed, if the VA will act on the FTCA claim right away or allow the 6 month period to run out with or without a written denial of the claim.

In cases where the VA has noted medical evidence of merit,and has accepted the FTCA claim, they will order a Peer Review through the VA Office of Medical-Legal Affairs

The Peer Review report (there can be more than one done-in my case they did 3 or 4)

is a list of 10 or more questions that specifically regard the veteran's care.The IMO template your attorney provides will anticipate what these questions, for the most part ,will be. These Peer Reiews are only available to the plaintiff under FOIA , AFTER any final settlement occurs.

In one Report I have regarding my FTCA case, the questions solely focused on my husband's cerebral vascular accident and a confirmed medication error. In another 6 page Peer Review report the questions had 5 possible answers and the Review Doctor had to circle one answer for each question and then there were areas in which he expanded on his answers. This regarded my husband's malpracticed heart disease.

For example:

“Was the proper therapy/treatment executed in a timely manner?”

Definitely Yes Probably Yes Probably No Definitely No and N/A

The doctor circled Definitely No and enhanced his answer with direct references to 2 EKGs I had sent in with my SF 95.

and “Was the patient injured as a result of any of the above components of care?”

He answered probably Yes and added “it is possible that the fatal events cold have been averted or delayed with prompt diagnosis and treatment.”

In another Peer Report the questions had no multiple choices and this cardio doctor elaborated thus:

“This is the slowest work up I have ever seen.” and

his BP was NOT adequately treated and this is extensively documented.”

“Yes there are multiple deviations from the usual standard of care.”

“”All of these deviations hastened his death.”

The Peer Review reports obviously seek to resolve the 2 fundamental issues of all FTCA cases:

Did medical negligence/malpractice occur due to VA care that was substandard when compared to the “usual” or “Standard” medical community ?

Did the veteran patient have resulting disability(ies) or death due to the substandard care?

What happens next:

After receipt of a Peer Review report that reveals malpractice such as above reports, the RC or OGC will contact your attorney to begin negotiations for a settlement. Your state laws will possibly have a bearing on the amount of settlement you can get as well as how much VA health care actually damaged you.

If VA health care costs a veteran their life, obviously those settlement stakes are high. If the disability that VA malpracticed on as caused, has also stopped your ability to work,that too is a settlement consideration. There are many factors that your lawyer will make sure the VA considers in their offers of settlement.

What happens next:

The VA is supposed to honor a NPDB mandated agreement and report the settlement and those doctors charged with the settlement to the National Practitioners Data Bank.This list in turn goes to every state Department of Health and Human Services to report on their web sites under disciplined doctors in their state as public knowledge. VA doctors are not exempt.

Does the VA always do this? NO!! The VA is willing to defy this important mandate and if they don't properly report the doctors in your charges within a reasonable period of time after settlement is finalized you should get in touch with the NPDB yourself.

Once the settlement papers are signed the information goes to the US Treasury Department and they send the money. You pay no income tax on the settlement, but you do pay income taxes on any income it generates if you invest it or intrest if it is in a checking or savings account bearing interest.

If you also have a Section 1151 ,38 USC claim pending for the same malpracticed disability, by time of settlement your lawyer will have advised you on the offset ramifications of that.Of course you have evidence (the settlement with the US of A) to provide to VA now to get a Section 1151 award letter.

The laws and regulations for federal courts regarding FTCA issues -if suit has been filed in court due to a VA denial of the FTCA claim- are so involved that even NVLSP, National Veterans Legal Service Program advises in the VBM to make sure you have a lawyer at this point.They dont go into the multiple nuances of federal court law at all in their extensive FTCA information. All I had when I succeeded in FTCA was the info on FTCA in the VBM by NVLSP ,also access to a local law library which was miserable to travel to and use, and I also had medical evidence of malpractice in my husband's VA records. It was not easy to find but if they malpracticed on you it will be in there. An IMO doctor, in the field of expertise of the disabilities you have ,will see it. We have the right to pursue FTCA charges with VA without a lawyer. I didnt even have an IMO. BUT I don't advise doing this at all. And no one should go into a federal court if the VA denies their FTCA case, without a lawyer.

There is a wealth of more FTCA info on the net. But a good FTCA experienced lawyer, who also has dealt with the VA already on FTCA issues, will save you the time of reading the intricate FTCA legalize as it applies to the VA. They know it in and out already.

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