$900,000 Ftca Award Failure To Treat

[Berta]

The Department of Veterans Affairs this month agreed to pay $900,000 to settle a lawsuit filed by the family of a Washington man who died in late 2012 after a VA scheduler failed to refer him promptly to specialized care for melanoma.

Read more here: http://www.thenewstribune.com/2015/01/24/3603545_va-settles-for-nearly-1-million.html?rh=1#storylink=cpy

[Berta]

That payout offer is very low...have you negotiated directly with the VA or do you have a lawyer?

I negoyiated with General Counsel until I got what I wanted. You need to check your state's cap on tort settlements if your state has one.

By 'pension' I think you mean your husband's service connected compensation.

Survivors do not get their compensation after a vet dies.

We have to apply for DIC.I get 1233 a month DIC.

Have you filed a Section 1151 death claim?

Have you formally filed for DIC as well?

Did your husband have any claims pending at death?

I won my FTCA wrongful death case, as my 1151 claim was pending.

It was a 1151 claim my husband had filed before he died.

I also negotiated the offset from my DIC with General Counsel.

They almost always offset the entire tort amount from DIC awards.

When the amount I and VA counsel agreed on, the DIC did not pay me DIC until that amount had been recovered.many years after I won the DIC award.

Have you actually settled with VA yet?

Have you signed the compromise agreement yet, stating how much they will offset to your DIC?

If you are able, based on his medical records, at some point to prove his death was contributed to by service connected disabilities,

the VA will have to refund the offset DIC amount to you.

I am the only case I know of where that was done.Even NVLSP never saw that done before.

So I have no citation or case law reference for that.

It is always worth while trying to prove a SC contributed to a wrongful death.

I have 3 DIC awards. Sec 1151. AO DMII ( also misdiagnosed), and AO IHD (also misdiagnosed by the VA).

What were his SC ratings when he died?

Did the coroner list any SC disabilitty as a contributory cause of his death?

What was the prime cause of death....was the lung cancer deemed by VA (yet) as an Agent Orange presumptive,if he was an incountry Vietnam veteran?

Was he autopsied?

It seems you did not have a lawyer to handle this tort claim.

Do you have a vet rep to help with the 1151 claim?

We can certainly help here with that.

We have significant information here on FTCA, Section 1151, and DIC.

Under a Section 1151 DIC award, you will not get CHAMPVA or Chapter 35 educational benefits.

If your husband was 100% or TDIU SC in his lifetime, the VA could award those benefits due to his SC ratings.

I get those benefits under their initial award to me, as accrued,100% P & T SC for PTSD .They dont come with 1151 death awards (which is so unfair---they can kill a vet but then not award these additional important benefits to his dependents,under 1151.)

Did you file for both 1151 and direct SC death benefits for DIC?

Were their any accrued benefits due to you?

I know....lots of questions here........

I advise anyone filing a FTCA tort to obtain an IMO as well as a lawyer. I didnt have either one and sometimes the evidence is so probative a claimant does not even need an IMO.

There are plenty of lawyers who are familiar with VA malpractice on the internet these days.

You do have the right to do all this yourself however .

I did but I studied FTCA law and cardiology and neurology when I filed my SF 95 and was able to deal directly with the VA counsel. I also had been a pro se attorney many times prior to that.

If you have not formally signed a settlement I would ,if I were you ,ask for much more.

If you didnt have an IMO (Independent medical opinion) you did very well so far.....

Some malpractice,once a claimant studies the entire medical records, is prime facie, and they don't need an IMO but must prepare the case well to succeed.

Edited May 17, 2015 by Berta

[Berta]

I re-read this post.

You might be the second person in documented VA case law to do what I did...prove that a service connected disability caused or contributed to your husband's death as well as their malpractice.

The lung cancer, if proven to be from AO ,by filing a claim, or by substituting yourself on his claim, if he filed for lung cancer in his lifetime, due to AO, could be a service connectable cause of his death.

Or did the coroner state on the death Cert that Parkinson's was a contributing factor ?

This way you could trump any initial VA offset to the DIC. It will take time to do all that but it can be done.

[GuaymasJim]

Cathi1, please check your Personal Messages.

[GuaymasJim]

Ned, I am beginning to see that the AFGE is the 800# gorilla in the room. None of the crap we have been seeing could have possibly NOT be known to the union, yet the union did not publicly expose any of it. There is something really wrong and stinking up the room!

[Berta]

Cathi1

The General Counsel's offer is way too low....

I think sometimes,when a FTCA tort gets to that point, ..(the negotiations), vets or their survivors are intimidated by the fact they are dealing directly with either the Regional or General Counsel VA....

.who really are ,in my opinion, some of the smartest people in the VA.And I found the district RC and GC lawyers in DC FAR easier to deal with than my VARO.

They are more user friendly than many think BUT they will try definitely suggest low offers.

I laughed at them when they did this to me..but this is normal SOP .......they know, however, that his comp has stopped and that you might be willing to accept anything because you need money. Death is expensive and can throw a survivor into terrible financial distress.

They caused your husband;'s DEATH, and it seems to me based on the info here, this is the second death of a AO veteran they caused, whose survivor might be able to get an FTCA offset as well as the FTCA settlement amount.

If you have not signed any settlement papers yet, I strongly suggest you find out your state's cap on settlements and ask for more money.

And if you need a lawyer, contact Bob Walsh , and tell him Berta Simmons from hadit referred you to him .

He will surely ask you the same questions I did....what does the death certificate state as primary and secondary cause of death?
And he will ask if an autopsy was done.

A DIC claim needs to be filed under AO direct SC death as well as Section 1151, 38 USC from what I see here.
If your husband had a claim pending at death, you need to substitute yourself as the claimant.

Your profile says your husband got 73%...>>> .Did he get TDIU paid at the 100% rate? If so how long did he receive the 100% rate?

...Robert P. Walsh, Attorney (Very user friendly too... we have done many radio shows here with Bob, easily accessible at the Radio Blog archives here.

Telephone (269) 962-9693

Telecopier (269) 962-9592

E-mail: rpwalsh@sbcglobal.net

[RodneyT.]

Berta I've been away from Hadit for 8 years. We talked some years ago. How do I contact you now? I'm lost.