Vet Severely Disabled Due To Va Prescribed Meds

[silke]

Not sure If I have a case here, please advise.

My husband started going to a VA Clinic in 2009. He was prescribed a drug called risperidone by a psych doc. After 6 months or so he began to shake, and had involuntary movements....not severe but noticeable. The drug was not effective so they kept raising the dose.....over time his involuntary movements became worse. We went to a C&P exam in 2010 for a schizophrenia claim and it was mentioned in the exam report that he had Tardive Dyskinesia.....a involuntary movement disorder brought on by the meds he was prescribed....this was the first time that I was made aware of his condition. I ordered his treatment notes and his doc was aware of what was going on with my husband.

For the next two years he was kept on a high dose of risperidone and his condition became severe....he has constant involuntary movements, has a speech impairment, gait problems and has almost lost use of his hands.....I filed a claim for TD and was given an 80% rating permanent as well as SMC L for A&A.

Last summer we moved and went to a new clinic, and was seen by a psychiatrist/neurologist, he seemed surprised by my husbands condition and immediately took him off the risperidone and started a different drug. He also, for the first time, documented a diagnosis of Neroleptic Induced Tardive Dyskinesia....unfortunately his condition is now permanent and there Is no treatment for it...he will be like this for the rest of his life.

I have read extensive medical documents on this. From what I have read, at the first signs of tardive dyskinesia the offending drug should be discontinued, continued treatment would cause worsening of symptoms and condition will become permanent...and that's exactly what happened.

I feel the doctors were negligent in his care...something should have been done a long time ago.

[PainterBK]

Sorry or your troubles. It sounds like total lack of care on the doctors part.

You should hold him accountable, so this doesn't happen to someone else.

Unortunately its a guessing game with psych. drugs & it seems like they are pushing

whatever the flavor of the month is. Good luck to you & your husband.

Bob K

[Berta]

This sounds to me like the basis for a Section 1151 claim,and possible FTCA case.
Is the 100% in your profile to the left, this veterans SC rating?


I need to make this point here as I think it has been lost.
A veterans with a TDIU or 100% rating for direct SC, cannot be penalized ,compensation wise, for additional Section 1151 disabilities ,in any 'offset' of 1151 ratings to the actual direct SC ratings:


What many veterans do not understand is that even if the are service connected for something ,and at TDIU or 100% ,and they have additional Section disabilities, the VA pays the 1151 comp IN ADDITION TO the regular SC comp.
An “Offset” regarding an FTCA award is different.


My AO IHD award shows exactly what I mean.
The veteran had 100% P & T for PTSD and was posthumously awarded or IHD due to AO
He also had 100% granted under my SMC CUE claim,in the same award for 1151 CVA.
The VA paid me his 100% 1151 CVA compensation in addition to the 100% accrued I had already received , after he died., and VA also paid for his SMC S award.
I need to post this info separately at the FTCA forum because many vets AND Many many Vet reps don't know how this works.
I even have friend I got 100% P & T for under Section 1151. I have tried many time to tell him the VA neglected to rate him 100% as direct SC under AO, for NHL, which they malpracticed on, which would be comp in addition to his 1151.
But.....he doesn't get it and neither does his Vet rep...oh well

here is what I mean in VA lingo....


“The amount of offset must not deprive a Veteran of any part of the compensation payable to him/her if a claim under 38 U.S.C. 1151 had not been filed.

Do not offset any amount if the disability compensable under 38 U.S.C. 1151 does not increase the total amount of compensation.

The offset provisions are applicable if compensation for a particular disability is payable solely under 38 U.S.C. 1151. If compensation is otherwise payable for that particular disability, regardless of previous evaluation, then no offset is required.

Reference: For an example of a situation in which an offset is not required, see M21-1MR, Part IV, Subpart ii, 3.D13g "

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&sqi=2&ved=0CC8QFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch03%2Fpt04_sp02_ch03_secD.doc&ei=vqlNUdO9FpTW2wXXsYH4DQ&usg=AFQjCNF9K_I2UBBOXGTq0vWy6O0-OioFmw&bvm=bv.44158598,d.aWc

In my recent Section 1151 claim against VA (No time limit for 1151 claims) I reminded them of the above M21-1MR citation and the regulations. Just in case they 'forget' how to rate and pay this claim.


In my opinion , as a 1151er, you can claim both secondary results from the bad med, as well as negligence under Section 1151.


However, you will need copies of all of his VA medical records, all private records, and a strong independent medical opinion (possibly from the Psychiatrist/neurologist) to state with full medical rationale that
the veteran was incorrectly diagnosed and received medical care that was not consistent with the standard medical community. He was incorrectly prescribed a medication which caused his additional severe disabling conditions, of .(0ut here the conditions he has due to the meds).
It is well known medically that


“At least three cases of tardive dyskinesia have also been reported with risperidone use with one case accompanied by risperidone induced parkinsonism. Tardive dyskinesia involves involuntary, dyskinetic, repetitive movements. Tardive dyskinesia may be irreversible and is related to both the duration of therapy and the total amount of drug consumed. Frequent discontinuation and resumption of therapy may predispose patients to the development of tardive dyskinesia.

At least fourteen cases of neuroleptic malignant syndrome have been reported with risperidone use. Fever, altered consciousness, autonomic dysfunction and muscle rigidity are the hallmarks of the neuroleptic malignant syndrome. The neuroleptic malignant syndrome is associated with a case fatality rate of about 20%. Immediate discontinuation of neuroleptic therapy, consideration of dantrolene administration as well as intensive monitoring and supportive care are indicated. Nine of the 13 cases reported were between 15 and 43 years old. One of the cases had a delayed onset and another case resulted in death. “
http://www.drugs.com/sfx/risperidone-side-effects.html
The IMO doc will use his own citations here to bolster his opinion)


and if you google 'risperidine lawsuits,' a multitude of lawyers will pop up with info.


There is more info in our FTCA forum on both FTCA issues and Section 1151 claims.


Both need Proof of malractice/negligence.
And proof that VA caused a resulting disability ot disabilities ,due to their negligence/malpractice.


These claims both require Strong IMOs and a FTCA case requires getting an FTCA lawyer.
I am a successul FTCAer asd wel as Section 1151er.
It is my opinion,based on what you have posted, that you definitely have a good case

BUT I might be assuming TOO much....

".I filed a claim for TD and was given an 80% rating permanent as well as SMC L for A&A."

What exactly was the SMC L and A & A awarded under?????

Did VA in fact rate the SMC L nd A & A as secondary to the med?

Can you scan that part of their decision and attach it here? (Cover any identifying stuff)?

"We went to a C&P exam in 2010 for a schizophrenia claim and it was mentioned in the exam report that he had Tardive Dyskinesia.....a involuntary movement disorder brought on by the meds he was prescribed"


They might have rated him for some of this negligence as secondary already but I cannot tell here.

However I think you got them here;
"Last summer we moved and went to a new clinic, and was seen by a psychiatrist/neurologist, he seemed surprised by my husbands condition and immediately took him off the risperidone and started a different drug. He also, for the first time, documented a diagnosis of Neroleptic Induced Tardive Dyskinesia....unfortunately his condition is now permanent and there Is no treatment for it...he will be like this for the rest of his life."

I am assuming that even though VA knew the med had caused his additional problems, they still treated him with the same med and his conditions got worse.
It would help to see the entire Reasons and bases for their SMC award.

I also suggest you get the help of a vet rep or VSO for the 1151 claim.

Once you have all available medical records, it would be time to seek an IMO doctor.
The Psyche Neuro might be unwillingly or unable to provide the type of IMO you need.

We have a great NeuroRadiologist,Dr. Craig Bash, who has done shows in our SVR archives here and they can be heard with any PC media player.

For one of my claims he prepared 2 stunning IMOs .It was over diabetes malpractice in addition to the FTCA award I got for wrongful death.

just to add to what I said here :

" I am assuming that even though VA knew the med had caused his additional problems, they still treated him with the same med and his conditions got worse."

The VA prescribed a med to my husband contraindicated by his heart disease.

They Knew" he had heart disease as soon as they read an EKG they did the same day they prescribed this med.

No one told the veteran , or even me , at that time of the results of the EKG or even when I questioned the cardio doc ,after he had the 1151 CVA (stroke) that he had severe heart disease ,definitely treatable when they first prescribed the wrong med, but which killed him 6 years later due in great part to their continuous prescription of a medication that I discovered he didnt even need to take.

I had to study cardiology and neurology as well as the FTCA regs, and won my FTCA case with no IMO nor any lawyer.

Every vet or surviving spouse has the right to file and pursue FTCA issues in their own behalf.

But I do NOT advise doing this without an IMO for either 1151 or FTCA , and getting a FTCA lawyer,if you file that way too.

Edited March 23, 2013 by Berta

[silke]

Bon, thanks for your response...and you're right, I'm doing this to prevent this from happening to someone else.

Berta,

Thanks for your time in explaining this to me. I was never real clear on 1151's. I would like to cite you some documentation to clear some things up:

Husband was awarded 100% P&T June 2011..incompetence was proposed..in the award letter it stated:

"It appears that you may be entitled to service connection for tardive dyskinesia, as secondary to your service connection, as you have experienced a complication due to the side effects of medication."

......this was the first time I was made aware of what was happening to him, I have asked the doc in the past about his increasing movements and such and they simple said it is a side effect of the meds...they never put a name on it. However in the treatment notes it was mentioned and that's why the rater made the above statement. I ordered his notes and then went to a VSO for review......he advised me to file immediately and helped me file the claim.

6 months go by and he gets a new p-doc...the third in 3 years. This one tells me to file for SMC and filled out a HB/AA exam... In the exam paperwork it essentially states the need for A&A due to symptoms of his SC schizophrenia and tardive dyskinesia. This doc lasted about a year and we moved.

The new doc is a psych/neuro doc, he was contacted by the RO last December, the rater stated he needed to be diagnosed in order to rate the claim..which he proceeded to do and was the first and only one to do so. However, he does not want any involvement with any legal claims.

When we received the award letter, there have been some changes:

"Although we have not changed the way we consider and decide claims, we have changed the way we inform you of our decision. This single streamlined notice includes the essential information previously contained in a separate rating decision."

All that it says in the notice is:

"We determined that the following condition was related to your military service, so service connection has been granted for tardive dyskinesia at 80%.

We granted entitlement to special monthly compensation because you need the regular aid and attendance of another person. In this case there is an additional benefit granted because the aid and attendance is based on your service connected schizophrenia and the additional separate service connected disability of tardive dyskinesia evaluated as greater than 50%."

.....and that was it. There was no C&P exam done. There must have been ample evidence in the treatment notes to rate this, some of these docs will not release his records to him. However, from what I do have, they were fully aware of his condition and the downward spiral he was on and did absolutely nothing. I'm going to talk to a VSO, hopefully a competent one, and find a forensic psychiatrist for a IMO....time is running out on a FTCA...........thanks for listening and your advice!

[Berta]

It seems the SMC award has tried to mitigated the damages : ( a CTA award in my opinion)

"We granted entitlement to special monthly compensation because you need the regular aid and attendance of another person. In this case there is an additional benefit granted because the aid and attendance is based on your service connected schizophrenia and the additional separate service connected disability of tardive dyskinesia evaluated as greater than 50%."

well Some of them.....

It seems the VA however continued the meds, which could have caused continued additional and more severe problems.

"There was no C&P exam done"

That is odd but as you said, sounds like they had ample evidence.

"because the aid and attendance is based on your service connected schizophrenia and the additional separate service connected disability of tardive dyskinesia evaluated as greater than 50%."

They didn't say granted as secondary ,they said ' additional separate service connected disability' so that leaves door open for a potential claim under Section 1151 in my opinion.

FTCA -there are some FTCA lawyers on the net familiar with VA FTCA issues.

Maybe they could opine on your chances under FTCA via email.....

However FTCA means an offset to SC 1151 compensation and it is not always the best way to go.

The best part about FTCA in my opinion, is that the VA lawyers in VA Central office of General Counsel deal with those claims, and although they are really tough,

I had a great deal of respect for them, when I dealt with them,. because they know VA case law in and out and they can Read.

I settled under FTCA many months before the VA awarded me under 1151.They denied my 1151 claim at first but I rebutted the SOC with the Settlement papers from the OGC.

VA had deliberately parsed the posthumous C & P exam they did for my 1151 claim.

When I found out how they deliberately left out important stuff and didnt even give the C & P doctor the 6 page autopsy I raised Hell big time with the RO.

Then I found out that they removed the autopsy from the files when they initially sent the med recs to General Counsel as well....I raised hell then too with the Cardio team at VA in DC, not knowing that they had prepared a deficient opinion at first because they didnt even know an autopsy had been done.

As my H VAC Shreddergate testimony (available at the VA web site) reveals, I sent this critical autopsy to the VA 12 times, with proof of mailing so this was definitely a deliberate attempt by the VARO to hide evidence that would award my claim.

The minute they got it from me, however,in Washington, everything got settled very fast with OGC.

A lawyer would have prevented this BS from happening.

BUT , it was the final FTCA medical reports from VA Central Strategic Med team that helped me succeed in multiple other claims I had ever since, with the VA.

So, Offset comes against any 1151 award under FTCA, ( FTCA settlements are in lump sum cash) but there are other benefits to having real lawyers from the VA at OGC and real doctors ,that VA Central has, to

make a documented finding of malpractice that might have further benefit down the road.

I had 3 major claims awarded since then ( and now have 2 pending) for which I used again,as evidence , the final report from the Strategic Med Team from VA Central. It was horrible and it covered almost the whole 9 yards on the malpractice.(almost....they still owe more)

feel free to copy my remarks here for the vet rep if needed.

Edited March 24, 2013 by Berta

[johnnyinla]

I am working towards the goal of achieving punitive damages for veterans suffering from Tardive Dyskinesia

from treatment they received with anti-psychotic medications after returning home or during their tour. The case is #14-55283, Elliott v. Janssen & Johnson & Johnson. You can write an "Amicus Brief" or "friend of the Court" and describe to them the effects of Risperidone and, specifically, issues related to the changes in the quality of life.

It is the Ninth Circuit Court of Appeals, San Francisco, CA .

Goodluck.

Jonathan

[Berta]

This sounds like a class action case.

Does Elliot represent a well defined class defined in the header?

I dont

t have time to access the case.....will later

Has the Class Action status been certified by the district court yet?

"from treatment they received with anti-psychotic medications after returning home or during their tour."

What legal actions have these veterans taken through the VA yet?

FTCA cases filed in time or Section 1151 claims (no time limit)

I wrote an Amicus Curie brief for a lawyer fighting over the old Concurrent Receipt regulations, which have certainly changed greatly since those days....

Those veterans affected (all Military retirees with SCs or potential SC disabilities) had no legal means via the VA claims process, to challenge the older regulations ( prohibiting CRDP).

"or during their tour."

Odd statement, due to the FERS Doctrine, I am surprised that a lawyer included that

Have you given any of these affected veterans the link to hadit here?

They might all have potential for 1151 or FTCA filing ( if within the FTCA SOL) or even both.

One more question ....who is the lawyer handling this?

"I am working towards the goal of achieving punitive damages for veterans suffering from Tardive Dyskinesia

from treatment they recei" etc

Are you a lawyer?

Edited October 20, 2014 by Berta