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Ftca And 1151 Info Bumped Up


Berta

Question

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

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Thanks Berta and Chuck 75. I agree with both your comments. I find it best to choose the battles I can handle and my current claim and everyday life events are quite enough right now.

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