Ftca And 1151 Info Bumped Up

[Berta]

In this link:

is a brief overview of the FTCA claims process.

I need to stress a few points I made:

“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.”

I have put the template I used somewhere in this forum for my SF 95 but a lawyer might well want to state it differently than I did.

You or your lawyer must make the point that the treatment ,wrong diagnosis , or omission of proper diagnosis and treatment did not comply with the “usual” standard of care in the medical community.

“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.”

This is one more reason why an IMO is crucial to these cases.Not only can a good lawyer anticipate what the Peer Review Questions will be, the IMO doctor can cover the anticipated questions.

This was a problem for me, not knowing what the Peer Review doctor would be asked.

However, the questions from VA Office of Medical.Legal directly referred to my specific charges in the Peer questionnaire taken from the SF 95 I prepared.

Unless you have a legal background and understand the FTCA regulations well, this is another reason why a lawyer should prepare the SF 95 themselves.

Here is more critical info on FTCA:

I dont think I ever did do the article I mentioned in one of the links.

It would have only been a repeat of what I have already posted here.

FTCA and Section 1151 claims boil down to two distinct criteria .

1. documented proof of negligence,malpractice , found in the veteran's medical records and hopefully supported by a strong IMO from a doctor with expertise in the field of the malpracticed disability and

2. proof of additional documented disability or death that was directly caused by the negligence or malpractice. A strong IMO will cover that as well, with a full medical rationale.

In some cases 1151 is more advisable than a FTCA case, and vice versa.

However, in some cases both should be filed.

1151 monetary awards cannot be combined with nor deducted from SC awards.

FTCA awards however can be offset to 1151 awards for the same disability.

An FTCA offset can be refunded if the claimant proves that the original FTCA award involved malpractice on a service connected disability.

I am the only claimant I know of who ever did that. Still that doesn't mean it cant be done by someone else..

FTCA wrongful death award 1997 and Section 1151 DIC with FTCA offset to the DIC.1998.

Direct service connected death award due to malpracticed AO conditions. 2009.

(I got 3 IMOs for this claim)

Full offset refund of DIC withheld from my Section 1151 1998 award. April 2010

DIC awarded due to direct service connection (which trumped the 1151 DIC) because direct SC death award garnered multiple ancillary benefits. 2009

[Berta]

The info in the Overview link in this thread is not correct, regarding FTCA.

My original FTCA Overview post is gone.

I see someone is reading this as a guest-

The other poster had no FTCA experience-I did.

I regret very much that she is deceased, but so is my beloved husband, death by VA, and it appears 

that he was her husband when she used the word "I"- but that was from my last posts here/

I will correct it.

 

 

[Buck52]

Ms Berta  This post is closed and locked, you will need to address this Ms Tbird  we are not given permission to delete post made by fellow senior members that have fallen in respect to them.

We are only  allowed to add new replies

Edited June 7, 2021 by Buck52

[GuaymasJim]

Hello Berta!

Could you please end some confusion for me. I have a recent dx of severe 2 vessel coronary heart disease and have had three stents implanted. Another stent is being evaluated.

My question is: I am a boots on the ground AO vet. The medication I take for my SC condition is known to cause CAD/IHD as well as cerebralvascular disease (strokes, TIA's). I have almost every known risk for CAD. Several years ago moderate PAD showed up on CT Scans, but I was never informed of the dx and the PAD was never treated. That is the FTCA malpractice claim--failure to diagnose and treat, failure to refer to specialist, failure to correctly interpret test results, failure to order additional tests--the list goes on. It could also be an 1151 claim on the same basis. The standard of care for PAD is immediate and aggressive treatment (similar to CAD treatment) to prevent progression to CAD and additional lower limb problems.

I have read and reread you write ups in the past about your horrible experiences with your husband. Where i get confused is how to I claim this. I have 4 ways to go:

Direct service connection--AO exposure

1151 harmed by negligent VA treatment/medication

Secondary service connection caused by medication prescribed for SC condition

FTCA for malpractice

I would be very interested in your take on this.

I am looking at the 100% + 60% SMC through direct service connection. I believe the same could be had through an 1151. Not sure about secondary service connection having any benefit to me. Damages for VA malpractice through SF-95---FTCA

I have filed the IHD based on AO exposure, but I am not certain that is the way to go. I have almost finished the SF-95 using as a reference a successful civilian malpractice lawsuit in which all I have to do is change the name and SOME of the dates. The similarities are shocking!

If you have the time, I would very much appreciate your thoughts on this.

Thanks!

[Berta]

Jim, with your 100% now , an AO IHD claim could possibly put you into the 100% plus 60 % SMC S criteria.

Also , an IHD rating is important ,even if it does not affect the amount of comp you get now, in the event of your death from IHD, for DIC purposes, if the IHD causes death or contributes directly to your death, even if the primary cause is a NSC disability.

“My question is: I am a boots on the ground AO vet. The medication I take for my SC condition is known to cause CAD/IHD as well as cerebralvascular disease (strokes, TIA's). I have almost every known risk for CAD. Several years ago moderate PAD showed up on CT Scans, but I was never informed of the dx and the PAD was never treated. That is the FTCA malpractice claim--failure to diagnose and treat, failure to refer to specialist, failure to correctly interpret test results, failure to order additional tests--the list goes on. It could also be an 1151 claim on the same basis. The standard of care for PAD is immediate and aggressive treatment (similar to CAD treatment) to prevent progression to CAD and additional lower limb problems. “

As I understand this you definitely might have 4 ways to go:

“Direct service connection--AO exposure”

The benefit of a successful claim in that regard I mentioned above . Potential SMC S and DIC basis in the event of your death.

“1151 harmed by negligent VA treatment/medication”

If a real doctor, a cardio specialist, can prepare an IMO that fully supports that the meds you were prescribed by VA caused and/or severely contributed to your CAD/IHD, that is a strong 1151 claim.

“Secondary service connection caused by medication prescribed for SC condition”

That too would be a strong secondary claim, if a cardio doc prepared that type of IMO as well ( Actually one strong IMO could cover both avenues of approach here, 1151 and secondary.

“FTCA for malpractice”

If you became aware of the potential malpractice , and file the SF95 within those years, (FTCA has a Statute of Limits),with the same strong medical IMO of the malpractice and the resulting disability it has caused (to include the extent of the additional disability for rating purposes)

then a FTCA case could be successful.

I filed all of above except any secondary claims.One of my pending claims could have been claimed as secondary but I went with 1151. No time limits on 1151 claims.

You could file all four ways.

In my opinion, this could be the potential scenario of filling all four ways.But with this scenario below a secondary claim might not be needed.

Obviously, since you were incountry Vietnam, the VA should award the IHD as due to AO and send you some retro.If it is filed as a FDC,it might go faster then we think.

Then with some of the retro you can seek to obtain a strong IMO that would support a subsequent Section 1151 claim, for the IHD ,to include the PAD or any other medical consequence of the IHD, as well as a FTCA claim, if you are still within the SOL (Statute of Limits).

IF the VA grants for both a SC IHD claim AND under 1151, then they must pay you separately for each of these claims (although same disability)

The regulation for Prohibition of Duplication of VA Compensation and other legal citations in VA case law , does not apply in this type of situation”

(I know because I had a battle over a FTCA offset, when I proved the same death was not only FTCA and 1151, due to negligent VA care , but then I proved the death of my husband was also due to AO DMII ( 2008) and then to include AO IHD (2012). VA had to refund the FTCA offset to my DIC to me. I have no other example documented anywhere ,nothing I found at BVA or CAVC, to support this....except for my personal documentation with the VARO in Buffalo, and VA OGC in Washington ,about 3 years ago....and the deposit to my bank account.) and the regs below.

I studies every VA reg I could find on that.The AO IHD award I received in 2012 also was a separate direct Comp award , as an accrued benefit, further showing VA cannot offset any SC comp to any 1151 comp.for same disability and

In my case, my 1151 was solid right from the git go, took a little less then 3 years to award, the AO DMII claim took over 7 years, and the AO IHD claim took about 2 years.

I suggest you file the SC IHD claim first ,only because that would provide some cash for you to pursue an IMO. As the AO IHD claim should not require an IMO. Unless you could obtain an IMO for 1151 and FTCA sooner than waiting for a VA decision on anything.

I had no IMO nor any lawyer for my FTCA case.When I think back I could have saved myself a lot of time and energy if I had benefit of a doctor's opinion . I had enough legal background, that I didn't really need a lawyer but that too would have saved me a lot of time.

I do not recommend filing FTCA or 1151 without a strong independent medical opinion.

I started studying cardiology before I even prepared my SF95 and studied Neurology too....for the Neuro aspects of the claim. I already had some background in that, due to my prior deceased Army vet husband with a brain tumor....This all took time from my farm here and from my daughter ,who joined the military before these issues I had were resolved.

As to a secondary award....the problem with that (although VA could cave in on secondary sooner then a 1151 award-which they prefer to do in my opinion)is that there is the offset, thus the comp would be less then a separate 1151 comp award, awarded separately once the AO IHD ,in your case, is service connected.

I need to make a point here for any guest or member reading this...a point I have made many times over the 13 years or more I have been here.....

after Rod died, and then word got around the local VAMC 3 years later about my FTCA case, I was deluged a little with local vets thinking the same VA had malpracticed on them. I still get contacts from vets or spouses thinking the local VAMC buggered them.

The fact is that about 95 % of those vets (and a few widows) did not appear to have any FTCA/1151 basis at all.

Two did and I helped them get their 1151 comp.

I see that here sometimes. What we think might be serious negligence might not be, at all.

I am not a doctor nor have any special expertise to really determine what is or isnt malpractice ,expect for cases like the recent vet in this forum. There definitely have been some absolutely prime facie obvious malpractice issues posted here ,like the vet with the recent CKD1151 topic, but I sure don't have time to review anyone's medical records to find it, and just can go by what is posted on this board.

In every local case I hear of,I advise the vet or widow to get the IMO. I could be wrong if I don't see the basis of malpractice in what they have told me, and an IMO, if it does Not reveal malpractice , then can give the vet or widow great peace of mind,knowing the medical care was proper.

FTCA cases........ there are lawyers on the net, with malpractice experienece with the VA and some might be able to assess your chances via email,maybe even suggest a good IMO doc they have worked with.

I have a legal background, am Pro Se attorney whenever I need to be, and could go toe to toe with the VA lawyers at OGC. And the VA Cardio team in DC.

But that is only because about 20 lawyers in NY told me, after brief discussions or phone calls, that I would never succeed in suing the USA ( which is what a VA FTCA claim really means you sue and settle with the US of A ).I was so fed up with their lack of interest and knowledge over FTCA, I just said piss on them and studied FTCA laws and did the FTCA case myself.

No one should have to do that these days. It is hard work , and stressful work, it takes too much time and energy ,and the VA lawyers at OGC are superb in their knowledge of VA case law and fight these FTCA issues aggressively. Just as a good malpractioce lawyer will too.

13. Determining Offset Effective Dates and Amounts, Continued

h. Example 2: Situation in Which an Offset Is Not Required

Situation: A Veteran

• is SC for a severe pulmonary condition, which requires the administration of significant doses of steroids

• later develops cataracts and claims that the cataracts are due to the steroid treatments, and

• files a compensation claim under 38 U.S.C. 1151.

Result: The rating activity should consider whether the cataracts are proximately due to, or the result of, an SC disability. If the rating activity does grant service connection for cataracts under 38 CFR 3.310, no offset is required.

Source :M21-1MR, Part IV, Subpart ii, Chapter 3, Section D

There is more in M21-1MR as well on how this all works.

[Berta]

I need to clarify the FTCA SOL:

“The FTCA has a two-year statute of limitations.¹⁷ There is no tolling provision for minors. If the federal agency denies the claim, a federal lawsuit must be brought within six months of written notice of denial by registered or certified mail.¹⁸ “

http://www.justice.org/cps/rde/xchg/justice/hs.xsl/16822.htm

The writers of this article are from the very astute law firm here:

http://www.govtclaim.com/

They have ample experience with FTCAs filed against the VA.

The two year limit ,as I understood it, when I filed my SF 95 was, I had to have become aware of the malpractice within the 2 year period after it had occurred. As within this:

http://www.koonz.com/pursuing-claims-under-the-federal-tort-claims-act-ftca

I am sure the 2 year SOL is explained in more detail at the VA web site and in other googable sites.

My husband dropped dead,Oct 1994. By December 1994 I had a copy of a few of some med recs.,the death certificate, and was still waiting for the autopsy results as well as his complete VA med recs.

BUT I also knew something had gone wrong.You dont get consistent medical care and then drop dead from major heart disease ,without some medical evidence that it had existed. A VA cardio doctor had told me ,after I asked him a question, when my husband had a stroke, that “nothing” was wrong with his heart.The doctor had paused oddly before telling me that.... I recalled the pause...a few weeks after Rod died. A light bulb went off in my mind.

I felt I had enough to file the SF 95 at that point, to definitely be within the SOL.

The veteran had also filed a Section 1151 claim himself fearing that he could have had misdiagnosed heart disease since VA had misdiagnosed his stroke for 3 weeks and he also felt his 30% SC PTSD (at that time 30%) had been malpracticed on because the VA was only giving him 30% of the therapy he felt he needed and that they could well provide to him.

I typed his 1151 claim verbatim as he said it....and he got a little angry when I suggested changes to the wording. I still read it sometimes.

In his death,with the evidence VA had, he had proven every bit of it. the PTSD was raised to 100%SC P & T posthumously when I fought that claim too.The EED was very favorable, an EED 3 years prior to his death (lots of work involved there too.)

(The 'pause' the doctor had made was the beginning of a major malpractice cover up at the second VAMC which treated him at that point. I had asked the wrong question. I had been dealing exclusively with the VA Neuros at that point and they knew I had the Neuro background and wasn't a dummy. We had not even gotten into the heart/brain possible connection to the etiology of the stroke yet. Neurology is complex.The local VA had been hanging onto a diagnosis of labyrhithitis and I actually believed them.... for 3 weeks.... then...... all hell broke loose when I realized he was practically dying, he got CT scan , it revealed stroke, and an immediate transfer to Syracuse VA Neuro docs from Bath VAMC)

VA holds to that 2 year SOL. However a good lawyer could potentially legally manipulate the established facts into a SOL that is more favorable that their client thinks.

But the chances of that are slim and require some real good counsel and evidence.

Here is link to some of the settlements this law firm won against the VA:

“The lawyers at the law firm of Archuleta, Alsaffar & Higginbotham focus on helping Veterans win their V.A. medical malpractice and negligence cases under the Federal Tort Claims Act (FTCA) in all 50 states. Our lawyers maintain a large caseload of VA medical malpractice cases.”

http://www.govtclaim.com/practice-areas/veterans-affairs-medical-malpractice

They have a click on button for a free case evaluation on their main home page.

[GuaymasJim]

Thanks Berta! Most of what I know about this, I got from your posts. This situation just has so many similarities to your experience that I had to ask. With a wife and that young fellow in the picture, DIC is extremely important to me.

I have already filed the SC AO IHD claim. The SF-95 is being proofed right now. A knowledgeable attorney is reviewing the case, with an eye toward determining if, given my age, a normal malpractice award would cover the expenses.

The two year SOL depends on the state where it happens. In AZ you have two years from the event or two years from when a reasonable person would have discovered it. Many states have the "discovery tolling" but not all.