Update To Is This Neglect

[khensonb52]

I contacted a law firm that advertised speciality in vet cases. I gave the nurse my info, and I recived a letter from the lawyer stating the statue of limitations has ran out. I thought I had 2 years to file after I realized I had been wronged. In my case it was june 21 2013 although the wrong done by the va was 10 years ago, I was unaware I needed a cpap machine until 6-21-13 at the dr visit when she seen the old records, and I have since pulled all my records and it verifies the doc never followed up on sending the results of the test, to get the machine and also a titration study was supposed to have been done before dering a cpap machine , and the va doc never done this. The va doc has admitted to dropping the ball on that. Also va doc reordered an apnea test as stated beforeon 6-21-13 Test by va has still not been scheduled, so I went the medicare way,and had the test a week ago. Dx with sleep apnea and restless leg syndrome. Was fitted for my cpap machine today.Sounds like the va just don't give a dam my dear. Thanks Hadit

[carlie]

Do you have hard core, medical evidence stating this caused additional residual disability ?

[TiredCoastie]

If it were me, I'd check the law for your state then try a different attorney. You were aware that you were wronged on 21 June 2013. That should be the date that an attorney could argue is the effective date of the malpractice for the purposes of discovering you'd been harmed. If you review your state's law, you might find that there is a provision for discovery of harm after the two year statue of limitations.

It could be that sueing the VA wasn't something that the attorney you spoke with knows anything about and waved you off from lack of experience or knowledge.

That said, I don't know a thing about pursuing the VA for medical malpractice, and there could be some provision in US Code prohibiting or limiting liability. Again, I don't know but certainly someone else on this forum does know and can provide some of that experience.

[carlie]

That said, I don't know a thing about pursuing the VA for medical malpractice, and there could be some provision in US Code prohibiting or limiting liability. Again, I don't know but certainly someone else on this forum does know and can provide some of that experience.

VA medical malpractice can be handled by either an 1151, FTCA or both.

[Berta]

Carlie is correct. There is no time limit on a Section 1151 claim, no Statute of Limits at all.

Often a veteran is better off filing under 1151.

“Claims Procedure Under the Federal Tort Claims Act

In part:

Filing an Administrative Claim

Prior to filing any lawsuit, an administrative claim must be filed with the government agency that employs the person causing the injury or damages (Internal Revenue Service, Department of Justice, U.S. Navy, NASA, etc.).

Agency claims procedures vary, as do the required claim forms (agencies may have their own forms), and the information and documents that must be submitted. A claim must be filed with the agency within two years of knowledge of the negligence (or when the negligence should have been discovered). Required information and documents may include:” etc

from:

http://www.tlgattorneys.com/2010/01/claims-procedure-under-the-federal-tort-claims-ac

But 1151,if successful, will usually obtain the same results as a settlement under FTCA. Also ,if there is a spouse, it often sets them up for potential 1151 DIC, if no direct SC disability eventually causes a veteran's death.

Medical proof of the additional disability, solely due to any negligence on VA's part, as Carlie said, would be required for both 1151 and FTCA issues.

TiredCoastie also made a very good point as to checking with another attorney....plenty of attorneys on the net handle VA Negligence/malpractice issues.

“In my case it was june 21 2013 although the wrong done by the va was 10 years ago, I was unaware I needed a cpap machine until 6-21-13 at the dr visit when she seen the old records, and I have since pulled all my records and it verifies the doc never followed up on sending the results of the test, to get the machine and also a titration study was supposed to have been done before dering a cpap machine , and the va doc never done this. The va doc has admitted to dropping the ball on that. Also va doc reordered an apnea test as stated beforeon 6-21-13 Test by va has still not been scheduled, so I went the medicare way,and had the test a week ago. Dx with sleep apnea an …..”

Documented proof of:

“The va doc has admitted to dropping the ball on that.”

And proof that the medical error of the VA directly caused the sleep apnea to have advanced without proper earlier diagnosis and treatment ,enough to have caused documented additional disability , should satisfy an 1151 criteria.

Of course you would need a strong IMO . The lack of “follow up” is an omission of an act that ,in my case, was the prime initial piece of evidence I had of malpractice ,in my case.

An IMO doctor (whether FTCA or 1151 claim is pursued) needs to see how ,10 years ago, up until June 21.2013, this omission of proper follow up and care ,was not detected sooner by VA because

“it verifies the doc never followed up on sending the results of the test”.

Who was the doctor supposed to send the test results to?

I learned that once a medical error is made, such as an 'omission of an act' in FTCA legal lingo,

then there is a subsequent snow ball affect, that leaves a paper trail, that reveals the steps the 'omission ' caused, to disable the patient further.

It doesn't happen like that in every case, but this is why a strong IMO is needed by anyone who files either a Section 1151 claim or a FTCA tort charge against the VA.

[broncovet]

That attorney just did not want your case. Dont despair tho. Attorneys sometimes have their "market niche" just like in other professions. He may not know anything about 1151 claims, and may be chosing not to delve into that area of VA law.

I spoke with an attorney who does SS cases and QUIT doing VA. His reason is that it just takes too long to get paid at the VA, and he could not wait 10 years for his money. SS cases usually happen in a year or 18 months, so VA's 4.3 years average at the BVA is just too long. (This 4.3 years number is from Veterans for Common Sense, its probably worse now).

Remember, the VA "feeds" these long wait for appeal times. Many times, it does not get "certified" to the BVA for 18 months or longer. Then, the VSO kicks in his delay time. My VSO delayed my BVA claim another 18 months while they "prepared" it for the BVA. These all work together to delay the claim as long as possible as the Veteran often dies or gives up in the interim.

Get another attorney. It may take 3 or 4 "swings" (attorney reviews of your case) before you get a "hit". It took me at least that many, as most did not even understand my case.

[broncovet]

In football, you often see players excel that give it a second, third, or fourth effort. With VA, you persist until you win. The only way you lose is to give up.

Most Vets who have won are highly persistent and did not give up on the first, second or even third denial. I have had 3 denials, and I am still swinging. (Oh, and yes, I have been awarded, too)