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]

Good Jim.......that is a very nice photo and, like just about every vet I know with a spouse, your concerns are for their future, if you are not there.

Yes, your situation is similar to mine, but you are alive,Thank God, and my husband died after filing his 1151 claim.

With the best witness, in my case, who was also the victim of the malpractice..... being deceased, it became a vastly different 1151 claim and FTCA matter , in that respect.

"A knowledgeable attorney is reviewing the case, with an eye toward determining if, given my age, a normal malpractice award would cover the expenses. "

That makes sense.

In the negotiations I had with the VA lawyers at OGC, they had to determine ,since my husband was only 47 at death , just how much longer he could have lived, without the malpractice.

But we have a state cap on OTC settlements anyhow. I had no interest in pursuing a federal court case for more money.. I had worked for the VA and I loved it.I still love the VA as much as I gripe because I have had a long relationship with so many aspects of the VA system and made some GREAT friends there.

I just wanted it resolved so I could have Peace of mind and go on , knowing exactly what the VA had done wrong, by their admissions.

(I did make sure I got right up to the state cap though , and went round and round with VA until I got it. Their initial offers were ludicrous.And it set the stage for my DIC, which Rod mentioned the very day he died, that he was very afraid I would never get DIC at all.

I get it (only one check every month) but,since he died, I have garnered DIC under 3 separate DIC awards.The last two award letters , along time in coming, were th best.

I can live with the Honor of his SC death....... the FTCA death held no honor at all.Just heartbreak.

And there is really no amount of money that can ever truly compensate a veteran's additional disability or death due to malpractice.

Edited July 10, 2013 by Berta

[Motherof3]

WOW, Berta you are so knowledgeable! I have a 1151 or FTCA question. It's nowhere as complicated as what I've seen posted, so I haven't posted in the past.

I had a complete hysterectomy including appendix in 2006 due to "undiagnosed GWI" I don't have. Here's the scenario.

Foot surgery to fix metarsalgia/hammertoe caused by imbalance and gait changes which are also not "GWI" in Oct 2012, which Dr. Didn't treat until worsened into unbearable pain. I still have nerve pain in both feet and topple over all the time.

Fell downstairs and fractured tailbone two weeks later.

Had XRay at ER which prompted CT Scan

Discover surgical clamp from 2006 surgery during XRay.

Does the surgical clamp equal malpractice? Some say its stainless steel and no worries. Others say it should not be there and it could travel in my body. Just curious. Current claim for PTSD/MDD increase has left me empty.

[Motherof3]

Oh yeah, still have hammertoe, dr. Took out a joint and shortened one toe. Sliced bone in bottom of foot at 45 degree angle and shifted it up. Leaving a screw to hold. LOL. nothing to do with my question, just wanted to say she basically deformed my toe.

[GuaymasJim]

Berta, This is the part that I am going to have questions about:

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 am taking this one step at a time. The DIC is the most important part of the claim. Also the window to purchase life insurance upon a new SC condition.

You are so right about my being lucky to be here to pursue the claim.

Thanks, Betra

[Berta]

Motherof3

Discover surgical clamp from 2006 surgery during XRay.

"Does the surgical clamp equal malpractice? Some say its stainless steel and no worries. Others say it should not be there and it could travel in my body. Just curious. Current claim for PTSD/MDD increase has left me empty."

You deal with a lot.

I dont know the answer to that. Only a real doctor could advise you.

Personally I wouldnt want anything in my body that doesn't need to be there.

But malpractice depends on causing an additional documented medical problem or disability directly due to the malpractice, and ratable at least at 10% disabling.So far you seem OK and the clamp has not started any problems, there fore there would be nothing to rate or settle for ,under 1151 claim or an FTCA matter.

At this point, but I sure would want a doctor to insure that (a non VA doctor)

Jim,

I sent them the actual M21-MR citation last year along with my new 1151 claim.

It is the one I posted above from

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

They got it right in my Nehmer award from Phila VARO but,for the newer 1151, being handled by my original AOJ,Buffalo RO I wanted to make sure they do it right.

To clarify, my original DIC under 1151 award stated IOHD asd factor in the 1151 DIC.

The payment I got however under Nehmer , was direct SC IHD due to AO.

Maybe I should have filed for IHD under 1151 too because, although the award for DIC stated it as part of the malpractice ,VA never rated the IHD, even as NSC in my husband's lifetime.

That was another reason they had to award my CUE claim in Philadelphia.

The IHD rating went back to 1988 under the AO regs, not 1151.

I get as confused as anyone else would over some of this VA stuff. I did a lot of just staring into space in utter exhaustion at times, when I worked on my claims.

[Chuck75]

"Discover surgical clamp from 2006 surgery during XRay"

Negligence, yes. Malpractice, ???

The "devil" will be "in the details".

A major issue will be what is involved in removal, and if problems exist or arise as a result of the clamp.