Gauging A Tort Claim

[gunners7163]

Good Morning!

I'm a newbie but have used this site many times for important information.

I would like opionions on a potential 1151 and FTCA claim I'm thinking of doing. I say thinking, because not sure if it applies but also feeling a little bit werid thinking of doing this.

Last month, Feb 2014, I went to see my VA Primary Care doctor for moderate-extreme pain on the upper calf of my right leg that I had almost two weeks (I thought it was a calf strain but it just wouldn't get better). My doctor saw me, spent about 10 minutes typing and copy/pastiing my info on the her PC then looked at my leg for less than a minute. She touched the area of the calf where the pain is located and I yelled out because it was so tender to the touch. She told me to make an appointment with Rheumatology (I have osteoarthritis on that knee).

A few days later I took off from work due to the pain and inability to walk. However, during the evening that day and into the next day, the pain began to subside. By the end of the next day however I started to feel pain in the right side of my chest (also thought it was a strain...obviously I'm not medically smart!).

The next day the pain was worse so I went to the emergency room where I was immediately admitted with a large to massiive pulmonary embolism (PE). I spend five days in the hospital. After asking me questions, I told them about the leg pain and they said the pain on my calf was a clot or deep vein thrombosis (DVT). I knew absolutely nothing about what they were talking about except they kept telling me how lucky I was because this could have been fatal. I'm now on coumadin for life. Very terrifying to think about.

After this whirlwind event, I started researching this subject and talking to people. From what I've found out, my PC doctor should have examined me more thorougly and conducted some tests to rule out DVT. It seems from what I've found out that the location of the pain, tenderness, the fact I have ulcerative colitis, a little overweight, and some mobility issues because of artritis in my knee and ankle combined with winter, should have been some of the indicators to check for DVT. Sometimes swelling is a factor but it was not noted thought I believe I may have had some swelling. I think had I been put on coumadin/heparin and/or blood clot breakup medication all of this would have been avoided.

Now, I like my primary care doctor. She's a very nice lady. But the more I think about this the more it bothers me. I'm angry and fearful and just can't get it out of my head that I nearly died. Everytime I feel anything at all on my leg or chest I panic (it's usually gas).

Some friends have suggested I take action, seek legal assistance, and file an 1151 and a Federal Tort Claim. This seems all clear cut to me that I was wronged and a malpractice (though unintentional) took place but I'm not a medical professional and as mentioned before, not always up-to-date with the obvious, especially when it comes to medical things.

sorry for the long explanaion. Appreciate any thoughts!!

[Berta]

"The next day the pain was worse so I went to the emergency room where I was immediately admitted with a large to massiive pulmonary embolism (PE)"

To The VA ER or a private hospital ER.????

Reason I ask is because if the VA did mitigate the damages of the PCP VA doc ( wrong diagnosis which could have killed you) then that would be a mitigating factor for the VA to use against any FTCA or 1151 claim.

HOWEVER, I am a successful FTCAer and 1151er.The VA caused my husband's death with many inaccurate diagnoses,and I have had 3 1151 awards and have another 1151 claim pending....Major malpractice usually has a snow ball affect.


"From what I've found out, my PC doctor should have examined me more thorougly and conducted some tests to rule out DVT"

If you read my posts here re: FTCA and 1151 , I had to prove VA doctors did not meet a "standard as found in the usual medical community" ,meaning non VA doctors would have handled my husband's symptoms and test results in a far different manner, and had given proper diagnosis and treatment that would have saved his life. Badically your point too.

I used that phrase on my SF 95 (the initial charges under FTCA ,which must be filed within 2 years of knowledge of the incident) and the evidence and charges I claimed were the same for both the 1151 claim and the tort. There is an offset factor if a claimant wins both, discussed in this forum as well.

VA pays these claims on the basis of proof of negligence and then having a resulting ratable disability directly due to the negligence.

There is no doubt in my mind that this was a medical error on your VA doctor's part, but if rectified and treated by a non private hospital, I dont see what potential ratable disablility it has caused. These claims all boil down to money. Of course you did lose time from work.

But what did the VA do or should have done prior to this incident?

That would be a strong 1151 or FTCA factor.

You need to review your blood tests to see if VA had any reason to do a ' factor assay' blood test.This test determines the clotting factor of blood, and can reveal a predeposition to clots that cause DVTs. I had some sort of clotting test done right before I had a CT scan. ( not at the VA). It would certainly be SOP prior to any type of surgery I believe. A regular CBC doesnt really reveal clotting issues:


"Complete Blood Count (CBC)

Photo: A vial of bloodThis common test measures the amount of hemoglobin (the red pigment inside red blood cells that carries oxygen), the size and number of red blood cells and numbers of different types of white blood cells and platelets found in blood. The CBC is normal in people with hemophilia. However, if a person with hemophilia has unusually heavy bleeding or bleeds for a long time, the hemoglobin and the red blood cell count can be low."

"Activated Partial Thromboplastin Time (APTT) Test

This test measures how long it takes for blood to clot. It measures the clotting ability of factors VIII (8), IX (9), XI (11), and XII (12). If any of these clotting factors are too low, it takes longer than normal for the blood to clot. The results of this test will show a longer clotting time among people with hemophilia A or B.

Prothrombin Time (PT) Test

This test also measures the time it takes for blood to clot. It measures primarily the clotting ability of factors I (1), II (2), V (5), VII (7), and X (10). If any of these factors are too low, it takes longer than normal for the blood to clot. The results of this test will be normal among most people with hemophilia A and B.

Fibrinogen Test

This test also helps doctors assess a patient’s ability to form a blood clot. This test is ordered either along with other blood clotting tests or when a patient has an abnormal PTExternal Web Site Icon or APTT testExternal Web Site Icon result, or both. Fibrinogen is another name for clotting factor I (1).

Clotting Factor Tests"
http://www.cdc.gov/ncbddd/hemophilia/diagnosis.html

Have you ever had any documented potential causes of the DVT such as found here:

"What Causes Deep Vein Thrombosis?

Blood clots can form in your body's deep veins if:

A vein's inner lining is damaged. Injuries caused by physical, chemical, or biological factors can damage the veins. Such factors include surgery, serious injuries, inflammation, and immune responses.
Blood flow is sluggish or slow. Lack of motion can cause sluggish or slow blood flow. This may occur after surgery, if you're ill and in bed for a long time, or if you're traveling for a long time.
Your blood is thicker or more likely to clot than normal. Some inherited conditions (such as factor V Leiden) increase the risk of blood clotting. Hormone therapy or birth control pills also can increase the risk of clotting."


http://www.nhlbi.nih.gov/health/health-topics/topics/dvt/causes.html

Basically you might have to prove that VA could have prevented the disability of the DVT if they failed to take adequate steps to diagnose and treat a predilection to potential clotting of your blood.

If so, in my opinion, assuming the ER and subsequent care was at a real hospital and not at the VA, that would be where the money would lie for a successful FTCA and/or 1151 claim.

Section 1151 and FTCA claims all need a strong IMO, by an expert in the field-Hematology in your case) to determine the malpractice and then determine the ratable disability it has caused.

If an IMO does not reveal malpractice, then the value of the IMO ( they can be costly) is having Peace of Mind.

I didnt have a lawyer for my FTCA.

I dealt directly with the Office of General Counsel.

These people are the smartest in the whole VA system in my opinion and they are tough.

I liked them but I have a legal background and I do not suggest anyone filing a SF 95 without consulting a lawyer.

However, You are not required to have a lawyer for a FTCA case.

Lots of info here on 1151 and FTCA in this forum.....as well as the offset explained and also how to word the SF 95.

I had a situation in 2010 I think, (VA on my settlement papers) had agreed to a five figure offset ...sometimes the offset amount can be negotiated.and I was as tough as the VA attorneys on that)

that VA had to refund to me if I succeed in a direct SC death award. I succeeded in that but they would not pay me until the OGC wrote them and ordered them to pay me.

I first called the VA attorney who handled my settlement who promptly got some honcho down there in DC on the RO's ass. It had been many years but he remembered me right away and we BSed for a while on VAOLA and FTCA stuff.He knows I am a claims advocate here and told me that many FTCA claims are denied by OGC right off the bat because the SF 95 was not prepared correctly.

My FTCA SF95 might even be here somewhere.I studied FTCA regs before I prepared it.Those regs are definitely in this forum under a hadit forum search..

Another reason vets really need a lawyer for FTCA stuff.The SF 95 controls everything,once it is filed.

Edited March 27, 2014 by Berta

[gunners7163]

Hi Berta,

Thank you so very much for the time to answer my long winded questions. You've provided me a wealth of excellent information!

I'll do my best to provide some answers to the questions you asked.

"To The VA ER or a private hospital ER.????"

I was treated at a private hospital. It was a holiday and felt it couldn't wait.

I'm very sorry to hear about what happened to your husband. In my case, the more I learn the better I feel about having NOT gone to the VA for the emergency.

I see you've been helping others for some time now so I will make it a point to go back and research and read your advice to others!

The VA saw me after the incident, mostly by a hematologist and the anticoagulant clinic. I'm not sure if anything is rectified at this point because I still have issues of chest tightness and discomfort (not to mention some emotional issues I'm having trouble getting past). I haven't received any guidance from the VA other than monitoring my INR levels for coumadin. Ironically, the rheumatology appointment my PCP advised took place today at the VA. I explained to the doctor about the pain and my PCP advice (hence today's visit) and his first response was "Why wasn't an ultrasound ordered to check for DVT?" Good question!!!!

No clue about my blood results prior to the incident. However, I've downloaded my lab tests and I'll research and see what's there....who knows!

There was a possible DVT incident while I was in service. In 1996 after two very long international flights, I had similar calf pain and the doctor (at a small clinic in Manila) opined either calf strain or DVT. They did a quick ultrasound and didn't see anything. Well I see now that doesn't mean a thing. The private hospital did an ultrasound as well to make sure the DVT was gone and didn't see anything. The VA did one several days later and did see a clot. I'm thinking the ultrasound is only as good as the person conducting the procedure.

I did speak to an attorney today who is former service guy and familiar with the VA system. He's quite certain we have a strong case. He did say that we (he and I) are not medical professionals so we will have to obtain non-VA medical professional opinions to back the claim. That makes sense. He then asked for my military, VA, and non-VA medical records. So the research begins!

Hope this cleared up a couple of your questions. Feel free to ask away, it benefits me and anyone else who may have a similair situation! Thanks!!!!!!

[carlie]

What do you feel is your resultant additional residual disability (condition).

If the answer is having to take coumadin / blood clot meds for life, these meds most likely

are to help prevent further clots from your DVT and not a result of malpractice.

jmho

[gunners7163]

You're right, it wouldn't be. In my case it's the failure to recognize symptoms of DVT. Had she recognized the symptoms an ultrasound would have been ordered, clot discovered, meds administered thus preventing the clot from traveling to my lung. That didn't happen obviously lol. Thanks very much for your reply!

[gunners7163]

Berta and Carlie - just want to say I'm looking over all the info you've both posted and find it excellent. Best information available on the internet! Thank you!