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More 1151 Info

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I say here sometimes everything I know about 1151 is in our 1151 forum....but actually I think most of it is in the FTCA forum.

Here are some of those posts in the FTCA forum that explain 1151 :

The documented medical evidence needed is the same for both types of claims.

There are reasons whereby a claimant might not want to file under FTCA and that it would benefit them more to file under 1151.

Then again this vet continued his claim into the Federal Circuit court and received a settlement so large that he really didnt need to file 1151.

"The case went before Senior U.S. District Judge James Munley for a nonjury trial in September 2012. In a 69-page ruling issued in January 2013, the judge agreed doctors made numerous errors in treating Mr. Laskowski, 36, and awarded him $2.4 million for past and future lost earnings and $1.2 million for pain and suffering. Mrs. Laskowski was awarded $140,615 for loss of her husband’s companionship."

FTCA and Section 1151 claims boil down to two distinct criteria .

1.documented proof of negligence,malpractice , found in the veteran's medical records and hopefully supported by a strong IMO from a doctor with expertise in the field of the malpracticed disability and

2. proof of additional documented disability or death that was directly caused by the negligence or malpractice. A strong IMO will cover that as well, with a full medical rationale.

I have seen very few potentially solid 1151 /FTCA issues here over the past 17 years. But that only means, in the limits of hyperspace we can only base our opinions and advise on what we read here.And it would take up way too much gigabytes or whatevers to read an attached entire VA medical record.

Any way too much time.

And of course we are not doctors and VA doesn't care what we think.

That is why IMos are critical for this type of claim.

And if the IMO reveals the possibility of a substantial award, I am sure a lawyer will gladly help with the claim or FTCA issue.

38 USC Section 1151 :

"38 U.S.C.A. § 1151 affords compensation benefits for a "qualifying additional disability" in the same manner as if the additional disability were service connected.
The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a "qualifying additional disability," the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment or examination or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); See also 38 C.F.R. § 3.361 (2014).

To determine whether a Veteran has an additional disability, VA compares his condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to his condition after such care, treatment, or examination has stopped. VA considers each involved body part separately. See 38 C.F.R. § 3.361(b).

To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a Veteran's additional disability. Merely showing that he received care, treatment, or examination and that he has an additional disability does not establish cause. See 38 C.F.R. § 3.361©(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361©(2). Additional disability caused by a Veteran's failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. See 38 C.F.R. § 3.361©(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. See 38 C.F.R. § 3.361(d).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused his additional disability (as explained in 38 C.F.R. § 3.361© ); and VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without a Veteran's or, in appropriate cases, his representative's informed consent. See 38 U.S.C.A. § 1151 ; 38 C.F.R. § 3.361(d)(1) .

Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2)."

as defined by the BVA

"The claim for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for left shoulder strain, as a result of treatment at a VA medical facility, is granted."


Both FTCA and 1151 claims ,initially , should be as brief as possible, sticking only to the established medical facts, that indicate malpractice.

Once filed, there is time to elaborate on the medical evidence.

My initlal DIC claim referred to my husband's 1151 claim pending at his death that I continued after he died , as wellas his PTSD claim..

Survivors in those days could not substitute themselves as the claimant and had to start from day one.

My initial submissions for my 1151 claim were brief...only a VA ER Certificate, the death certificate, and his 6 page autopsy.

The VA ER certificate was one of my important pieces of evidence.

Once I figured out the acronyms on it, and looked up one specific word on it, I knew for sure that they had killed him.

Edited by Berta
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berta great info here,

How would a vet go about getting a ER certificate?

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Buck, for many years in the 1980s, we didnt think my husband was allowed to read or even have a copy of his VA med recs.

A nurse screamed at him when he opened his med rec file one day, after hours of waiting in the VA clinic and reading everything else they had, DAV ,VFW mags, newspapers etc.

She screamed at him and said You are not allowed to do that.as she caught him reading his medical file on the doctor's shelf..

Now I understand why.,If the vets take their files out of order, the docs cant call them in order for their appointments I guess.

Only after he died, I realised I could get a copy of his VA med recs.

The VA ER Certificate means this was an Emergency Room situation and write up. He was taken by ambulance from the building he worked in, to the VA ER, as he had collapsed on the job.

Of course we never questioned the diagnosis that day and had no reason to.

They said he had a very bad sinus infection and put him on sudafed and gave him a 3 day off work chit.

His VA boss called here about 10 times those 3 days and he couldnt wait to get back to the job , and still felt lousy, because he couldn't take the pressure of those phone calls anymore.

The EKG from the ER was abnormal and revealed probable inferior wall ischemia, and the ER cert ( difficult handwriting to read, said "diaphoretic".

Minutes before he collapsed, he told me that the other VA employees were looking at him with shock, asking what is wrong???. He had started sweating profusely.
I found a medical definition of this word and this is often the first visible symptom of a heart attack. diaphoresis.

and also the ER Cert stated WU/CAD, RO CAD...

meaning to work up for CAD and rule out CAD.(cardiac arteriao disease )and another notation for follow ups needed.

They never told him he had a heart attack that day.Never did a single thing to rule in or our heart disease. This heart attack was also evident as well in his autopsy.

EVERYONE , whether VA PT or not should know exactly what is in their med recs and ask questions of their doctors for anything they dont understand.

My PCP doc always gives me a current med rec copy after every appoint I have,to include blood work results, bone scans, cholesterol results etc etc....

We all need to know what is what medically about ourselves.

Our spouses need to know too.

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My pcp only has a computer & I'm not sure she can make me copies? Don't see a copy machine in her exam room? but I would like a copy every time I have an exam at the VAMC

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I think they have a main printer in snother room shared by several computers in the different exam rooms.


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Sorry for the typo but I have a legitimate excuse today. Just had UPPP surgery this am and they have me loaded with liquid Oxycodone for my pain.


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Oh that's right I hope you get your pain under control, I was thinking bout you last night I said to myself last nightI think GP said he was having surgery this morning?....I hope that all went ok for ya buddy hope get to feeling better & have a fast recovery

Take Care

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