Va's "new Deal"...wait Until Sol Is Up To Inform You.

[broncovet]

The VA has a "new deal". Wait until the Statue of limitations is over before informing Vets they were infected. That way, it costs the VA zero. Remember those Vets that got exposed to Hep by the VA's colonoscopies with dirty equipment? Suprise, Suprise..the VA is fighting these Vets tooth and nail and at least one Vet lost

http://www.montereyherald.com/health/ci_20761772/court-rules-against-veteran-colonoscopy-case?source=rss

[Philip Rogers]

I don't see how the state is involved, as I feel it should have been in federal court. All VA's are on USA government property and therefore it should be a federal court case. The VA can use unlicensed doctors because they practice on federal property and aren't governed by state law. jmo

pr

The VA has a "new deal". Wait until the Statue of limitations is over before informing Vets they were infected. That way, it costs the VA zero. Remember those Vets that got exposed to Hep by the VA's colonoscopies with dirty equipment? Suprise, Suprise..the VA is fighting these Vets tooth and nail and at least one Vet lost

http://www.montereyh...case?source=rss

[Berta]

This isnt a VA "new deal "at all.

The FTCA criteria for the SOL is very clear and it is the FTCA claimant's responsibility to make sure they file a timely SF 95 within theStatute of Limits of the FTCA regulations. (and this veteran did.)

I assume here that (since I went through the FTCA process myself ), the VA OGC denied the claim under their constructive denial procedures and maybe at that point the veteran still had not acquired a lawyer and did not promptly file the case in a state court.

As I understand this, he missed the court fling by 2 months.

If he had a constructive denial from the VA he could have filed in court right away. It is basically a Right to Sue letter.

This case is unfortunate however, but might not impact the other veterans who filed suit also.

This is why in our FTCA forum I tell vets or widows they certainly have the right to pursue FTCA without a lawyer, but they are far better off in getting a lawyer to handle any potential tort claim against the VA right from the git go.

One good reason is due to state SOL laws.

I knew my state's SOL laws, which was all very boring to understand and it wasn't an issue because I settled with VA.But state laws regarding malpractice issues can be critical to a case like this vet's case.

There is much more to this story then we know.

Was the veteran potentially offered a settlement from VA that he refused and then he decided to fight in the state court? and is that how the state SOL ran out?

Or did he experience what I did ( a removal of critical evidence from the c file so that the OGC would not see it )and this is why they denied the tort?

If he filed the SF 95 himself and pursued it until the denial, did he get persistently on them at OGC by fax, email and phone to keep getting get a status of the case as well as try to get copies of any VACO or Peer Reviews?

A vet or widow/widower should get a lawyer (and all VA med recs) even before they file a SF 95 if they feel they have been malpracticed on or that VA has caused the death of their veteran spouse.

Edited June 3, 2012 by Berta

[broncovet]

Thank you for your insight on this Berta. I was being sarcastic that it was a "new deal"...the VA has been messing with Veterans for eons. I dont know any of the details other than what it says in the article. However, it does appear like we need to watch the SOL because it appears the VA wants to "weasel" out of paying Vets/widows any way they can, as always.

It was very unnerving the VA could delay informing the Veteran of his exposure to infection, then tell the Vet he waited to long to persue his claim against the VA, running out the SOL. My first thought was, "How can they possibly get away with that?".

From the article posted:

Huddleston's attorney argued that his claim was timely under federal tort laws and that the deadline clock should start when the VA first notified him about the problem, not in the previous years when he was unaware of the infection.

Some of the colonoscopies that prompted a letter from the VA date back to 2003. VA officials have said there was no way to tell where the infections came from, but the VA said it would offer free medical treatment to all those affected. But few cases out of the hundreds that were filed have ever made it to a trial.

Juan Rivera, a South Florida veteran who claimed he contracted HIV during an endoscopic colonoscopy at a Miami Department of Veterans Affairs hospital, agreed to a settlement out of court before it was set for trial, said his attorney, Ira Leesfield.

Leesfield said these cases are difficult because of the multiple steps to prove that the VA was negligent in causing these infections.

"I think there are still some cases out there where people have not been represented because they don't know their rights. A lot of people don't even think they can sue the VA," he said.

My opinion is summed up in the last paragraph:

In 2009 you find out that a procedure you underwent years ago could have infected you with a deadly virus, that you could have transmitted to your spouse and then the government tells you that your claim expires before you ever found out about it," he said. "That's not fair, that's not right."

[Capt.]

Hello Bronco, and Berta, and Philip,

I am looking at Broncos post and saying to myself ........... this is pretty standard for the VA. Just another denial tactic that they find a loophole to use. Its just another way for the VA to close the time door if they can. Seems they are masters of this so every Veteran needs to watch all timelines ,,,,,,,,not just in claims but for the FTCA and Sec.1159 issues.

I agree with Philip about since an incident happened on Fed property it should be in the Federal Courts but the actual Tort is going to be in the state which it took place. I do not know how they can do it but unfortunately it is the law. The state wins the tort issue of origin and the state has the reform issues if warranted and the VA will vigorously fight to keep it in the state courts. I wish it was not this way but it is.

I am also waiting for the OGC and their "thoughts" so we can proceed. A denial letter is necessary before the court period can begin.

If a lawyer does not want to take a Veterans claim because of the unfair Tort Reforms laws in many states then the Veteran may have to take on the machinery themselves. Unfortunately most Vets including me are not as tenacious and skilled as Berta. The VA bit off more than they could chew with her. Bertas FTCA and Section 1151 experience is invaluable for Veterans . She proved the dragon can be slain without a lawyer.

I would like to comment that for financial issues , alot of lawyers do not want to tackle these types of claims , therefore putting the Veteran on his or her own. However Hadit has a great powerbase of Archives and people like Berta who have shown it can be done and WON on its own without a lawyer. Yes, it will take alot of research and reading but it can be done. THANKS Berta for all your help , also with me concerning this subject, early on. Above all...........NEVER GIVE UP. God Bless, C.C.

Edited June 3, 2012 by Capt.Contaminate

[Berta]

This Nolo site has a pretty good brief run down on FTCA:

And it includes this VERY true statement

“Unfortunately, suing the federal government under the FTCA is trickier than suing a private citizen -- you will have to jump through a number of hoops, and the lawsuits are subject to a lengthy and sometimes confusing list of limitations. “

and it states:

“Despite these and numerous other limitations on FTCA lawsuits, the federal government still pays out millions of dollars each year to compensate FTCA claims. So if you think you may have a valid claim, it may be worth pursuing. “

So true.

http://www.nolo.com/legal-encyclopedia/suing-government-negligence-FTCA-29705.html

I think there is confusion here on the US District Court system , within the state of jurisdiction, where a FTCA lawsuit against the federal Government is actually filed, after administrative remedies are exhausted.

[broncovet]

According to this website, 1151 claims and FTCA are different:

http://www.vabenefitblog.com/file-a-section-1151-claim-for-va-medical-malpractice/

It looks like 1151 is limited to (medical?) negligence at the VA while FTCA is much more broad.