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I just googled 'lawyers VA Malpractice FTCA' and a whole bunch of malractice lawyers popped up.

In a past post you stated that a lawyer had told you the Statute of Limits had run out.

You got some very good advise in that thread:

Have you obtained an IMO yet?

Have you filed a Section 1151 claim yet?

There is no time limit on 1151 claims. I filed three,one in 1995, one under CUE in 2004 and I filed another one last year, still in process.

The veteran they malpracticed on has been dead for 19 years.

FTCA and 1151 require the same evidence:

  1. documented medical proof of VA negligence or malpractice

  2. documented medical proof of a disability or death that directly resulted from the malpractice.

This is the FTCA Statute of Limits:

STATUTE OF LIMITATIONS

The limitations period is a matter of federal not state law. In effect, there are two “statutes of limitations:”

1. The claim must be filed within two years after the cause of action;

2. Suit must be filed within six months after the date of mailing by the government of its notice of final denial of the claim by the agency to which it was presented. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this action.

See 28 USC § 2675.

http://www.hgdlawfirm.com/blog/2012/10/01/the-federal-tort-claims-act-a-primer/

“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.

In my opinion, the date of your cause of action was June 21,2013 (because that is the date you became aware of the malpractice)and a good malpractice lawyer might see it that way too.

I contacted 20 NY lawyers when I filed my SF 95 and none of them would help me. That was in the days when lawyers could not advertise their specialties.

But there are plenty of lawyers on the net now who deal with VA malpractice.

My cause of action date was the date of my husband's death. However I proved negligence and malpractice had occurred beginning 6 years prior to his death.I won a 1151 CUE claim last year on his death and I have a current additional 1151 claim due to malpractice that VA never addressed in my FTCA settlement. Dr Bash, in an IMO he did for another disability that VA service connected (which had been malpracticed on'AO DMII ),even found another 1151 disability I have not claimed yet.

My advise here for anyone contemplating FTCA and/or 1151 is based on my experience with both of these types of claims.

Unless you want to spend days,weeks and months, like I did, reading medical text books and abstracts and pouring over medical records over and over again.....

get an IMO doc to follow the IMO criteria here at hadit .

The IMO will either reveal malpractice or ,if it doesn't it will give you peace of mind.

If it reveals substantial malpractice, no malpractice lawyer would then turn down the claim.

The 1151 can also be filed although there would be an offset to any 1151 comp up until the FTCA settlement is recovered. 1151 awards are important if the disability could eventually cause or contribute to a veteran's death.

Even if the 1151 award is made but the comp is recouped because of a FTCA settlement, the spouse would have little problem in getting DIC,if the death cert reveals the 1151 issue as causing or contributing substantially to death.

I had an issue some time ago that brought me back to dealing with the General Counsel's office and during the resolve of that , I had a few interesting discussions with the lawyers who handled my FTCA case long ago.They remember me well and know I am a veteran's advocate and I asked them what the main errors they see on SF 95s are. The main error is that the addition isn't done correctly on the bottom of the form for the damages etc.And if the dates don't fall into the Statute of Limits, on the SF 95, either one of these errors will cause an immediate denial of the case.

The SF 95 is often prepared wrong if the claimant prepares it without legal advise.

On my SF 95 where it asked for witnesses, this is usually for someone who falls at the VA or the VA van hits them, etc...

I listed about 10 VA doctors as witnesses. Because I had discovered, in the med recs, that a cover up had occurred 2 years prior to my husband's death ,of his actual medical condition and I proved that to the OGC..

Also “witnesses” can be subpoenaed ,so that too was why I listed the doctors.

If you claimed the cause of action date as June 21, 2013, on the SF 95 ,what has the General Counsel (or Regional Counsel) told you ,in writing as to why that date did not fall into the SOL?

I can tell you the VA will aggressively fight you if you dont have a lawyer.I was a pro se lawyer many times on other issues non VA related and I had confidence in my medical evidence and I sure was not intimidated by OGC at all. I actually liked dealing with the lawyers in DC.

They know VA case law and the regs far better then the ROs do.And VA lawyers love to read evidence.

They will read it all.

And they also know when they have lost the case and have no choice but to settle with the claimant.

They sure do prefer however to deal with another lawyer on the claimant's behalf and not the claimant themselves. One of them told me last time I talked to him,on another issue, that I had been very tough to deal with. You bet I was. I had documented medical proof ,solely from his VA medical records, that VA caused my husband' s death.

PS, anyone filing FTCA themselves will also have a battle with the medical top guns at VA in DC too.

. My prime medical evidence was deliberately omitted from the med recs that VA had sent to them.

I can still hear the top Cardiologist at VA Central holler into the phone at me ,"WHAT AUTOPSY?"

If was prime facie evidence for my claim and the VARO had deliberately withheld it from OGC and VA Central Strategic Health Team.

The VA, when the stakes are high, and they know you don't have a lawyer for any FTCA issue,

I can assure you ,will go as low as they can go.

Edited by Berta

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Thanks! No i have not filed any papers yet. I wanted to wait and see if being on cpap has helped my conditions. Been on cpap as ordered by private doc and recommended by cardiac doc for 3 months now. No more nightime angina,B/p down some,more rested. Have been back to see sleep doc and cardio to be reevaluated, they both opined that the cpap therapy has helped with my cardiac problem,such as relieving the nighttime angina. The one lawer i contacted stated that sol had ran out according to tennessee law., I don't know why he was relating to tn law instead of federal law. May be that this district goes along with state statues. Now that i have my results, I'll be contacting another lawyer to see what they say, also need to seek another IMO. My next va apt with my va doc is in a couple of months, would like to wait till after that because i;m sure i'll be blacklisted. VA has still not notified me of any apt schedule to have sleep study repeated, I can't wait untill my next apt, and fill her in as to i had to go outside the va to get anything done. Also have va medical records showing that over 9 years ago,same doc had results of that va ordered sleep study, she ordered machine, they denied her request,because she didn't send them the results of the test, She never followed up on that, and i was never told i had needed the cpap. As i earlier stated, i never had knowledge of this until jan 2013 because another va doc at that time asked me if i had ever been tested for sleep apnea, and i told her yes but i assumed i had passed the test, because i never was issued a machine and my regular va doc never informed me of the test results. So there you have it. Rated 60% since 2003 for CAD and 30 % lung cancer,20% diabetes,10%surgical scar p&t with Tdiu since 2003,no ratings since 2003.,, agent orange exposure..

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Maybe the lawyer didnt understand FTCA.

Or I think , maybe the lawyer was thinking of the next step to a FTCA claim....if the OGC denies it.

If it is denied,the claimant can then file suit in a state court. In that respect the state laws would control the cause of action filed.

Many,if not most probative FTCA claims are settled by the USA via the General Counsel of the VA and never get to a state court.

Filing a SF 95 is not a lawsuit .

If the SF95 claim is denied, then a formal state lawsuit can be filed.

As the info above states:

“The limitations period is a matter of federal not state law. In effect, there are two “statutes of limitations:”

However state law can control the amount of any settlement awarded.Years ago many states put Caps onto FTCA settlements.

Here are some Tennessee FTCA lawyers:

http://www.lawguru.com/answers/legal_directory/lawyer_finder/Federal_Tort_Claims_Act_Litigation/tennessee/

They will want to know of the documented medical extent of additional diagnosed and current disability you have, that is directly due to the alleged malpractice and VA's “omission of acts' that caused failure to diagnose and treat the sleep apnea sooner.

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