Tort And 1151

[sbrewer]

Hi,

What is the difference between a Tort and an 1151 claim? I know or at least I think I know, that a Tort would be lump sum and an 1151 is monthly as far as pay, but what are other differences? Is a tort harder to prove then 1151? How do you file a Tort and what is the time frame that you have to file a claim? Can you file both and if so why would you file both?

Thanks,

sbrewer

[Wings]

Hi,

What is the difference between a Tort and an 1151 claim? I know or at least I think I know, that a Tort would be lump sum and an 1151 is monthly as far as pay, but what are other differences? Is a tort harder to prove then 1151? How do you file a Tort and what is the time frame that you have to file a claim? Can you file both and if so why would you file both?

Thanks,

sbrewer

Veterans are entitled to file claims under both the Federal Tort Claims Act and for § 1151 benefits - at the same time . . . ~Wings

The Federal Tort Claims act involves several procedures that are different than the procedures, which are used to handle a claim against an ordinary individual:

http://www.vamalpractice.com/tort.html

1. A proper administrative claim must be filed with the appropriate Federal Agency within two years. Although this seems simple, click here for a partial list of reported cases where this step was not completed properly and the claimant's case was dismissed.

2. The time for filing a complaint is governed by when the Federal Agency denies the claim. In some cases you may have to file your case as soon as six months after your accident, and in other cases you may have more than two years from the date of your accident to file your claim Although this seems simple, click here for a partial list of reported cases where this step was not completed properly and the claimant's case was dismissed.

3. You must file your complaint in the appropriate United States District Court. Although this seems simple, click here for a partial list of reported cases where this step was not completed properly and the claimant's case was dismissed.

4. You must serve your complaint on the appropriate U. S. Attorney and the Attorney General of the United States. Although this seems simple, click here for a partial list of reported cases where this step was not completed properly and the claimant's case was dismissed.

5. The Federal Government is not an insurance company. A Federal Tort claim can only be made if the Federal employee was acting in the "scope of his employment". In some cases, the Federal Government will not be responsible for the actions of its employee and you may have to file a complaint against the individual in the appropriate court. Sometimes the statute of limitations against the individual employee, maybe different than the statute of limitations against the Federal Government.

6. You are not entitled to a jury trial. Your claim will be decided by a United States District Court Judge, without a jury.

7. The maximum attorney's fee is 20% for cases that are settled before suit is instituted and 25% for cases that are put into suit. (28 USC §2678)

Hadit FAQ's Veterans Affairs Claims/Benefits

100. What are Section 1151 claims?

1151 Claims are for injuries that will be rated ‘as if’ service-connected in cases where a veteran suffers injury, aggravation of an injury, or death as a result of VA medical treatment. The injury may have occurred during surgery, inpatient or outpatient care. If this resulted in an additional disability, the veteran can be compensated to the extent of that disability. If the VA hospital admits its error, compensation will be under the same VA rating schedule of disabilities that applies to all other service-connected conditions. If the hospital refuses to admit that it made a mistake, then you will need expert medical evidence to prove that such VA Medical Center (VAMC) treatment fell below the standard of care. Alternatively, a veteran can file a claim with the Dept. Of Veteran’s Affairs (DVA) for medical negligence or other types of personal injury under the Federal Tort Claims Act (FTCA), provided the veteran timely files Standard Form 95 (obtainable from any federal courthouse) within two years from the date the veteran knew, or should have known, of the injury.