Would Like To Know If I Have A Claim Against The Va

[garion]

Hello all,

I would like some advice about my situation. I went to the VA hospital in 2003 to have my Gallbladder removed. I had the surgery done and was told and it's stated in my medical records that my Gallbladder along with stones was removed and sent off to Pathology. 6 months after operation I returned to the VA hospital complaining about the same symptoms I had before the gallbladder was removed. I was told it was gastritis and sent home with meds.

Over the years I was experiencing constant stomach issues and was always in the emergency room or hospital. Each time I told the doctors that my gallbladder was already removed by the VA hospital. I went through numerous test and exams with no solutions.

Finally, after years of suffering, emergency room visits, being admitted to the hospital, and tubs stuck down my throat, my Gastro doctor finally ordered an MRI and PT scan on my stomach. He also had ordered a G tube be put in my stomach so he can go in and do surgery on my pancreas because that's the only thing he could think of that could be causing my pain. The MRI scan showed something that looked like an gallbladder with stones. But he wasn't sure so he ordered a Hida scan be done. The hida scan didn't show enough so my surgeon said the only way to find out whats going on is to go inside.

I went into surgery on 25 Sept 2012 and the surgeon finds my gallbladder with stones. The surgeon also find 6 metalic metal clips inside the gallbladder he state was left inside by the previous surgeon. He states it look like a section of the gallbladder was removed. The gallbladder ducts was blocks so bad that the hida scan ink couldn't get inside. My surgeon said he can't figure out why someone would remove a section of the gallbladder and not removed the entire gallbladder... And then leave metal clips inside the gallbladder... Not attached to the gallbladder but inside of the gallbladder...

I have all my medical records from the VA hospital saying the gallbladder was removed. I also have my medical records from my recent doctor saying he removed the gallbladder with stones and metal clips.

What do you guys think of this? Have you heard of a case like mine?

[jbasser]

You have a case.

It goes from discovery so contact a tort attorney immediatly and get the OR report from the VA and then from the private hospital.

Get an attorney as they will be lining up on this one.

You can also file an 1151 for the conditions you suffered as a result of their negligence,

But first thing, talk to an attorney today.

J

was the original surgury done at the MArion VA????

J

[garion]

You have a case.

It goes from discovery so contact a tort attorney immediatly and get the OR report from the VA and then from the private hospital.

Get an attorney as they will be lining up on this one.

You can also file an 1151 for the conditions you suffered as a result of their negligence,

But first thing, talk to an attorney today.

J

was the original surgury done at the MArion VA????

J

The original surgery was done in Brooklyn NY VA medical center. The second surgery was done in St. Louis at a private hospital. I refuse to use a VA hospital again. Not only did they not remove my gallbladder, they left metal clips in my gallbladder.

I am glad to just be alive. But at times the pain was so bad I wish I would die. I went back and forth to different specialist so much about the same problem, I thought I was going crazy... I finally found a doctor who decided to dig deeper. When the rest of the doctors saw the scars on my stomach from where the gallbladder surgery was done by the VA, they never bothered to look further to see if it was the gallbladder... Which is normal since the gallbladder suppose to have been removed.

[Berta]

Jbasser is right.

If you Google malpractice lawyers Veterans Administration- a bunch of lawyers ,familiar wth FTCA, will pop up.

If you also file a Section 1151 claim ( there is a lot of info here on both 1151 claims as well as FTCA cases), there would be an offset amount to any 1151 compensation from any successful FTCA settlement. However, a Section 1151 award sets the stage ,(if you should die with this medical error having found to have contributed to your death) for you spouse to garner a potential DIC award based on the 1151 issue.

“I have all my medical records from the VA hospital saying the gallbladder was removed. I also have my medical records from my recent doctor saying he removed the gallbladder with stones and metal clips.

You also need the medical records ,after VA said they removed your gall bladder. VA needs to know what additional problems and disabling conditions you had that were directly due to the botched surgery.

What do you guys think of this? Have you heard of a case like mine? “

We have a few FTCAers and 1151ers here. I won under both of these regulations many years ago and most recently VA awarded me an additional retroactive amount under the same 1151 issue.I have challenged the amount because it is wrong. Malpractice can have a far reaching affect and can be VERY costly to the VA.

http://www.springfieldnewssun.com/news/news/local/va-paid-8-families-in-death-lawsuits-1/nMzKm/

“DAYTON — The U.S. Department of Veterans Affairs has paid out $940,000 in the deaths of eight patients at the Dayton VA Medical Center between 2005 and 2008, a timespan when VA medical malpractice claims surged, according to records obtained by the Dayton Daily News.

Medical malpractice claims are pending in two more deaths allegedly linked to substandard care at the Dayton VA. Those deaths occurred in 2009 and 2010. Those cases are among 72 medical malpractice claims filed against the hospital since January 2007.”

(I assume this amount -940,000-was solely for DIC under 1151 and that these widows didnt pursue FTCA. VA sure got by cheap here)

Federal Judge Awards $1.25 Million in First Malpractice Trial against VA Hospital over Contaminated Endoscope

This FTCA award ( the veteran took the case to the federal court) was rendered on about one week ago:

http://www.businesswire.com/news/home/20121127005359/en/Federal-Judge-Awards-1.25-Million-Malpractice-Trial

There is a 2 year Statute of Limits for FTCA cases being filed.

Section 1151 claims have no time limit.

We have a lot of info on these types of claims here.

[Berta]

Just to add----

at this link there is a Section 1151 claim template:

VA has no formal claim template I am aware of for this type of claim.If you have a vet rep they might have their own type of 1151 template.

I just wrote a letter, using this template in the link, and added my C file number for my original 1151 claim.

I recently filed an additional 1151 claim, using that same template and described four pieces of evidence ( which I also included with it) and got it all on one page.

It pays to state your claim, exactly the way you did here-- short and to the point. But I advise adding to it the phrase in the link-

“that the VA did not adhere to principles as found within the standard medical community and thus caused you additional disability by their negligence. “

If a lawyer represents you for the FTCA tort claim, ask the lawyer if you could use the exact wording he/she advises in the SF 95 form.

Under Witness part, (this is same form used if someone say, gets hit by a VA van on VA property)

I put the names of the VA doctors who I became aware of, that had malpracticed on my husband.

I didnt have a lawyer for my FTCA case , so best to get lawyer's advice on that part ..

You stated what I would consider as a Prime facie case of malpractice against the VA.

Most FTCA/1151 issues are not that obvious.

It seems the private hospital ,in essence mitigated further damages with their proper health care ,so this is reason why I feel All of the medical records from VA and the private hospital, will have to be obtained.

Dont let VA know you are considered FTCA or 1151 claims when you ask for ALL of your VA medical records.

Because that is when the records might mysteriously start to 'disappear'.

[garion]

Jbasser is right.

If you Google malpractice lawyers Veterans Administration- a bunch of lawyers ,familiar wth FTCA, will pop up.

If you also file a Section 1151 claim ( there is a lot of info here on both 1151 claims as well as FTCA cases), there would be an offset amount to any 1151 compensation from any successful FTCA settlement. However, a Section 1151 award sets the stage ,(if you should die with this medical error having found to have contributed to your death) for you spouse to garner a potential DIC award based on the 1151 issue.

“I have all my medical records from the VA hospital saying the gallbladder was removed. I also have my medical records from my recent doctor saying he removed the gallbladder with stones and metal clips.

You also need the medical records ,after VA said they removed your gall bladder. VA needs to know what additional problems and disabling conditions you had that were directly due to the botched surgery.

What do you guys think of this? Have you heard of a case like mine? “

We have a few FTCAers and 1151ers here. I won under both of these regulations many years ago and most recently VA awarded me an additional retroactive amount under the same 1151 issue.I have challenged the amount because it is wrong. Malpractice can have a far reaching affect and can be VERY costly to the VA.

http://www.springfie...wsuits-1/nMzKm/

“DAYTON — The U.S. Department of Veterans Affairs has paid out $940,000 in the deaths of eight patients at the Dayton VA Medical Center between 2005 and 2008, a timespan when VA medical malpractice claims surged, according to records obtained by the Dayton Daily News.

Medical malpractice claims are pending in two more deaths allegedly linked to substandard care at the Dayton VA. Those deaths occurred in 2009 and 2010. Those cases are among 72 medical malpractice claims filed against the hospital since January 2007.”

(I assume this amount -940,000-was solely for DIC under 1151 and that these widows didnt pursue FTCA. VA sure got by cheap here)

Federal Judge Awards $1.25 Million in First Malpractice Trial against VA Hospital over Contaminated Endoscope

This FTCA award ( the veteran took the case to the federal court) was rendered on about one week ago:

http://www.businessw...lpractice-Trial

There is a 2 year Statute of Limits for FTCA cases being filed.

Section 1151 claims have no time limit.

We have a lot of info on these types of claims here.

You also need the medical records ,after VA said they removed your gall bladder. VA needs to know what additional problems and disabling conditions you had that were directly due to the botched surgery.

I have all my medical records from the VA. I also have in my VA Medical records where the VA clearly states they removed the gallbladder and sent the specimen along with the gallstones to Pathology to be examined. I also have in my VA medical records showing I came back 6 months later complaining about the same symptoms as before.

The best part is VA was very specific about what they claim they did. And my private surgeon was very specific about what they did and found. Everything is in clear print.

I also would like to know the order I should do things. I am going to file a 1151 claim through the VA with the American Legion representing me. But I also contacted a Tort Lawyer to represent me with FTCA. Do it matter what order I file?

[Berta]

I dont think any order of filing matters.

I filed both 1151 and FTCA on the same day.

1151 claim sent to Buffalo VARO

FTCA SF95 sent to the Regional Counsel VA for western NY

The FTCA went faster than the 1151 claim. VA lawyers can read.

[garion]

Berta,

How long did it take for your FTCA and 1151 claims to come through? When I called VA, they said an 1151 claim will take 10 months. How do I file a 1151 claim? Did you file your 1151 claim yourself or through the American Legion or some other Veteran organization?

Thanks for your help.

[Berta]

My husband had filed a Section 1151 claim 6 months before he died.

He had an additional claim pending as well, for higher PTSD rating.

VA had not made a decision in his lifetime on these claims.,so I reopened them in my name with the DAV as POA.

My FTCA case took about 2 years and the 1151 took about 3 years.

In those days survivors could not be substituted as the claimant so this is one reason these claims took so long. There were other reasons too . The regional counsel, and the peer review doctor retired suddenly. I traced them both down and they insisted the RO had the Peer review report but the RO told me it had never existed. I did find it however. New peer reviews had to be done by the VA and that took time.

“When I called VA, they said an 1151 claim will take 10 months “

I am surprised at that statistic.VA usually doesnt state a time frame.

I recently filed a new 1151 claim.

It was a very short claim and I listed the evidence and enclosed it.

I don't expect it to take 10 months at all. It should only take a few hours.

But then again the backlog is overwhelming.It could take 3 years.

I learned plenty from my last 1151 experience.

My medical evidence for my recent claim ,came from the FTCA medical evidence obtained by then General Counsel and I thought my recent Nehmer claim would have awarded for this additional disability under 1151, due to their favorable 100% 1151 award-in January -but it didn't.

“Did you file your 1151 claim yourself or through the American Legion or some other Veteran organization? “

After dropping the DAV, I have done all my claims work myself. I have had multiple issues and only one claim was denied because it was granted on a different basis anyhow. The DAV NSO gave me bad advise, and when I rattled off the regulation he had misinterpreted, he changed his advice but did nothing to help me.

The AL is well trained in this type of claims action. They probably had the same training I had from NVLSP.

You might need an independent medical opinion to help determined the rate of disability that their malpractice had caused and how long you suffered from additional disability . It seems that a private hospital mitigated future disabilty problems from the VA malpractice but that is something a doctor could determine. And something the AL or any rep could advise you on.

I noticed that most of the 1151 info here has to be searched for under the hadit search feature and isn't in this forum.

Edited December 3, 2012 by Berta (see edit history)

[garion]

To All,

First I would like the thank Berta and everyone else for your help... Thanks very much!

I wanted everyone to know that you can file your Section 1151 claim online at www.va.gov... Then go to eBenefits and file your claim online using the form 21-4138 like Berta mentioned. It also allows you to attach medical evidence to your claim online. Also, you will be able to see step by step the progression of your claim. You don't need to worry about medical evidence or records being lost in the mail.

I still sent the VA a hardcopy of my medical records but they also have my electronic copy as well that they can't claim to not have received.

Electronically filing your claim help the process along a little faster. If anyone have any questions about electronically filing with the VA, please feel free to ask and I will do my best to answer your questions to the best of my ability.

Thanks

[garion]

Berta,

The 10 months is now standard VA decision time passed by congress recently because so many Veterans was complaining about the wait time for disability. Now, the VA have 10 months to respond to claims unless more evidence is required. But most veterans must get a decision in 10 months or less.

[carlie]

To All,

I wanted everyone to know that you can file your Section 1151 claim online at www.va.gov... Then go to eBenefits and file your claim online using the form 21-4138 like Berta mentioned. It also allows you to attach medical evidence to your claim online.

Also, you will be able to see step by step the progression of your claim. You don't need to worry about medical evidence or records being lost in the mail.

Just don't count on the bolded above, to be accurate or up to date.

JMHO

[carlie]

Berta,

The 10 months is now standard VA decision time passed by congress recently because so many Veterans was complaining about the wait time for disability.

Now, the VA have 10 months to respond to claims unless more evidence is required. But most veterans must get a decision in 10 months or less.

Respond to claim can be a canned generated letter stating,

We have received your claim . . .

We are working on your claim received on XX/XX/XXXX . . .

I do not see anywhere in the cards where most veterans WILL ACTUALLY get

'a decision in 10 months or less'.

This is more kool-aid and I just can't drink it.

There's lots of kool-aid going around.

JMHO

[garion]

Carlie,

Are you in the process of applying for a FTCA or 1151 claim or have you been awarded your claim? I am still new to this but my lawyer is doing my FTCA claim and I am doing my 1151 myself.

Do you have a lawyer representing you in your claim?