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Fs-95 For Failure To Diagnose



I am boots on the ground Vietnam veteran 1969-1972. I have successfully handled my own compensation filings with the Veterans Administration for Diabetes type II, renal disease, liver disease, hypertensive heart disease, bilateral peripheral neuropathy in legs, and bilateral peripheral vascular disease. I am currently rated 90% with 10% added for unemployability, Permanent and Total. In December 2013 I began having urinary difficulties which resulted in medication and orders for a PSA from my primary care doctor at Michael E. DeBakey VA Medical Center. The prostate biopsy performed in May revealed stage 4 prostate cancer with a Gleason score of 9 (4+5 for 6 biopsies and 5+4 for six biopsies). I have sent a letter request to the Veterans Administration for compensation requesting that Prostate Caner, presumed caused by exposure to Agent Orange, be added to my list of service related disabilities and this effort is ongoing. Their response is expected in the next month. I am also pursuing an SF-95 claim suggesting malpractice as a result of failure to diagnose.

These are my positions; 1) Physical exam performed in 2008 by Kelsey Seybold noted asymetrical prostate with PSA at 1.5.

2) These records were provided VA for compensation and copied to my primary care physician in 2009.

3) UCDavis/Norther California VA Medical Centers study published in Cancer in 2008 shows that Vietnam Veterans exposed to Agent Orange are 200% more likely to get prostate cancer, 75% more likely to have aggressive prostate cancer, and 400% more likely to have mets. I believe this information should have been shared with primary care physicians throughout VA determining that in country Vietnam veterans were high risk for prostate cancer. Another study published in 2013 from Portland VA shows the same results as UCDavis.

4) VA medical center guidelines state that annual counseling regarding prostate cancer should be conducted.

5) A review of all medical records from May of 2009 to January of 2014 do not show counseling, digital rectal exam, or PSA.

My claim of malpractice is that given evidence of asymetrical prostate, study results indicating Vietnam Vets at high risk of prostate cancer, and VA guidelines to annual counseling at a minimum, the annual counseling should have been conducted which would have resulted in detection of the cancer at a much earlier stage.

My question is this; Given the type of claim that I suggest above, will I still need an IMO? In reading posts on this forum it seems to me that I may need an IMO for review of my records confirming no counseling and supporting "standard of care" as counseling on an annual basis as a minimum.

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  • HadIt.com Elder

It sounds like a delay in diagnosis and treatment, which ,in turn, caused you additional disability.( advanced cancer)

"My question is this; Given the type of claim that I suggest above, will I still need an IMO? In reading posts on this forum it seems to me that I may need an IMO for review of my records confirming no counseling and supporting "standard of care" as counseling on an annual basis as a minimum. "

Yes. And as a FTCAer myself, I also suggest that you get a lawyer to handle the FTCA action.

I have had contact with General Counsel's office , a few times since my FTCA on other matters ,and the lawyer who settled initially with me, told me how many FTCAers never fill out the SF 95 out properly, and the OGC or RC has to immediately reject the claim.

In one sense I didn't fill out one area the way the VA expected me to.

The Witness area on the SF 95 is mainly for, if a VA Van hits you, or you slip and fall on equipment a VA worker didnt move ,etc etc. mainly witnesses to accidents...

But I listed multiple malpracticing VA doctors as witnesses.

(I figured that would allow me to subpoena them if needed and I did ask VA to use their subpeona powers (in 38 somewhere) regarding one of the doctors, who had left the VA but I found him myself. He gave me my 3rd IMO for my AO DMII death claim.

I think maybe a copy of my SF 95 is here somewhere.

If you have a legal background you can begin an FTCA action yourself but still I definitely suggest getting an IMO and a lawyer..

You have to file within 2 years of the FTCA Statutes of Limits.I cant determine your SOL dates with your post.

VA used to have a M21 version for their physicians. I have never found it on line. I found a small part of it in a law library and copied one page of it.
It was very probative evidence for my FTCA case.

Also if you can find evidence (within M21-1MR) or any in BVA decisions,etc, that VA issued a Directive to VA physicians, involving the positions you stated above, that showed that the VA should have known and complied with proper PSA procedures and follows ups, that could be some dynamite evidence for this claim.

I am a Watergate buff.

I learned that the Watergate question was not only helpful when I filed CUE claims, it was very important when I prepared my FTCA case:

"What did they know and when did they know it?"

In my case, (wrongful death of my husband) , I found the answers to that question,hidden in the med recs, and within an odd conversation I had with one of his VA doctors.

The cardio doc had paused before giving me an answer to a question....and that odd pause bothered me...until I found out why.....that was the very day the Syracuse VAMC ,where my husband had been sent to, for treatment of a stroke, began a cover up of almost 6 years of malpractice that had occurred here at the Bath NY VA.

You can certainly pursue a FTCA issue yourself (I also filed and won under 1151,38 USC too) but that takes a LOT of legal and medical research and ability to go one on one with the VA lawyers.

For 2 other claims I had ( Proving misdiagnosed AO DMII and misdiagnosed AO IHD, I got 3 IMOs for the DMII claim and used a 'non existent 'Peer Review
Report from VA for the IHD claim.

The Peer Review Report ( always done for FTCA issues) suddenly vanished from the VA,after the RC here in NY wanted to settle with me.

Because the report vanished they tried to deny me many times, but I had other probative evidence without out, and VA kept saying it had never existed.

I found it at the bottom of my c file in 2003....this was only one of many things that VA pulled on me, to get out of the FTCA claim.

I can assure you that if you do go it alone, and have meticulous medical evidence, the VA will still stoop as low as they can go, but if you are aggressive like me, the evidence will award these issues, if you can prove malpractice.

I did like dealing with the OGC, as an adversary,however because these VA lawyers know Title 38 in and out, far better than the ROs and our vet reps do and will read all of your evidence,
unless the VARO withholds some of it from them ( as they did in my case) .as with the Peer Review report and even withheld probative evidence from the doctor who did the posthumous C & P exams......for the 1151 claim.
He was stunned to learn this because it meant his opinion in the C & P was not based on fact and I knocked down both of his C & P exams.in a heartbeat with evidence the RO was sent 12 times, yet still refused to acknowledge it. It was ,of course, the most probative evidence I had.

In those days lawyers could not advertise their specialties like they can now on the internet.

After 20 NY lawyers told me I didnt have a case, or 'you cant sue the gov,'or some BS like that, I did it all myself.

But these days I would not hesitate to get a malpractice lawyer for an FTCA issue, because they could prevent the crap the VA tried to put me through thinking I would give up.

A malpractice lawyer will ,as likely as not , also want a solid IMO too.

Edited by Berta
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  • HadIt.com Elder

Just to add:

These are not FTCA settlements regarding the VA but indicate how valid a timely diagnosis of prostate cancer is:

"Prostate cancer case settled pre-trial for $1 million
Delay in Diagnosis of Prostate Cancer Results in Death
of 71 year-old man "


57-year-old man with metastatic prostate cancer
wins $825,000 malpractice settlement

2003 Medical Malpractice Settlement Report


"Collectively, New Jersey medical malpractice lawyers Michael L. Weiss, Esq. and Robert E. Paarz, Esq. have presented over 15 medical malpractice cases relating to the failure to diagnose prostate cancer to juries and have helped many families achieve substantial financial recoveries. They are committed to using their knowledge and experience to help any individual or family who has suffered a severe, permanent injury or death due to medical malpractice to obtain fair compensation."


There seems to be an age factor that prompts prostate screening,in both VA and non VA medical care..But then again, any symptoms that are medically documented, could often warrant prostate cancer screenings and be proof that proper medical steps were not taken.

In your med recs look for acronyms like "WU/PC", "R/O PC", anything that indicates they considered further testing but failed to do it. Try to decifer any entry that seems to have been crossed out.

You must prove to the VA under FTCA, that the 'standard and usual 'medical community) meaning the non VA medical community) would have taken different steps to properly diagnose and treat the Prostate cancer, and that the failure to timely diagnose and treat has caused you additional disability..

Every malpractice case is unique. Metastasized prostate cancer ,invading other organs , obviously can cause many other disabling problems.

But then again, it almost always takes a real doctor to determine if malpractice occurred and if it resulted in a significant impact on the patient's health. Local vets or their survivors continue to contact me from time to time, with what they feel are malpractice issues. from the same VAMC that treated my husband,

Most of the time I do not feel their claims are valid ,based on what they say, but I sure tell them to get all available med recs from the VA, and I refer them to hadit and also to get an IMO because it is the medical record itself that reveals malpractice and an IMO doctor will go over the entire record carefully.

IMOs can be costly but if they dont reveal malpractice, they give the veteran (or their survivors) peace of mind.

Edited by Berta
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Leon (and others), take every word Berta writes about malpractice, 1151, and FTCA claims as gospel. She knows her stuff better than many (if not most) attorneys. She constantly attempts to remind people that there has to be some type of damage to succeed. In other words, you will have to prove additional disability (damage) which resulted from the malpractice. "Pain and suffering" damages are not allowed, although they can sometimes be shoehorned in in the form of secondary conditions. An example would be major depression, or even PTSD, resulting from the medical mistakes. Chronic pain that wasn't present or less severe prior to the malpractice is another. Also, you cannot ask for or receive "punative damages" (the big bucks in most civilian malpractice awards). The first step in any malpractice claim is to get ALL of your medical records. You have electronic medical records and most believe that is all. It isn't! You also more than likely have paper records especially if you had surgery or another procedure. The ROI is not going to tell you this, so you are going to have to ask and be persistant to get them. Also, there may well be internal communications like emails or other messaging--you want those! You are not required to give a reason for wanting ALL of your medical records; and I strongly recommend that you don't give one-especially if you are contemplating a malpractice action! Important documents have a curious way of disappearing!

I personally won the SF-95 portion of my claim, but did not accept the lowball number offered by the Regional Counsel. Ultimately, my lazy attorney stopped doing anything at all and let the Asst US Attorney run wild against us. During discovery, he just boxed up all the information I had given him, including personal opinions and analysis of our strong and weak points, and sent it all to the US Attorney. Using that information, she was able to attack our strengths and emphasize our weaknesses. According to the state bar association, we had a solid legal malpractice claim against the attorney, but were too exhausted and broke to pursue it.

During the years (as opposed to months) that our claim was active it became crystal clear that to prevail we had to prove these things: (1) The medical professional(s) had a clear duty to treat you; (2) The treatment (or lack of treatment) damaged you; (3) The treatment (or lack of treatment) you received was substandard--loosely defined as being contrary to way the medical community in your location treats your specific condition. The most convincing "Expert Opinion" will decide this. (4) If you get that far, your are going to have to convert the damage(s) into a precise dollar amount and be able to convince a judge (no jury for veterans) that both the amount claimed and the means by which you determined it are reasonable.

The adage "No harm-no foul" certainly applies here. In other words, a doctor can commit malpractice and get away scott free if you aren't damaged (don't incurr additional disability). I believe this happens all the time at VA facilities. As an example, a veteran at my VAMC was to have brain surgery. At his pre-op appointment, he was told not to take some specific medications on the day of surgery. He was (is) in possession of the preop instructions which list which medications to take and which medications not to take. The veteran was in complete compliance on the day of surgery. However, the doctor had overlooked one medication and failed to instruct the veteran NOT to take it on the day of surgery. Unfortunately, that medication combined with the surgery anesthesia caused to veteran's blood pressure to drop to 0 within seconds. The deadly combination is, and was, well and universally known to the medical community. Fortunately, the staff was able to react in time and saved the veteran's life. Since the staff was successful and the veteran did not die on the spot, the VA is unwilling to even perform the formal Adverse Event Disclosure as is required by VA and Joint Commission regulations/standards. Did malpractice occur? In my opinion--without a doubt! Will he be compensated for it--in my opinion not likely. Will the incompetent doctor be held accountable--in my opinion not likely. Will this near miss cause the VA to improve its procedures--in a word NO.

Now for something else I discovered during my claim: When a FTCA, 1151 claim is is progress, the VA and the US Attorney who represents the VA read what is written here on hadit! (I actually saw hadit readouts on the US Attorney's desk during depositions.) Keep this in mind because you will have to defend everything you write here about your FTCA/1151 claim. In legalese, it is called "memorializing" the event. If it differs from what you have submitted with your claim, you will probably have a big problem defending the differences! You could also reveal weaknesses in your claim as well as your legal stategies.

Nothing in this post is legal advise. I am not an attorney. I am just sharing my experiences. If you are going the FTCA/1151 route, I strongly recommend getting a qualified, experienced, and competent attorney to represent you. Unfortunately, my attorney was none of those things and as a result, not only did I not get compensated for the malpractice the VA admitted to commiting, my out of pocket expenses almost bankrupted my family.

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