Filing Ftca Questions

[gwvet90]

When filing form 95 for FTCA -

1.) Should you include statement of how your life is impacted by your disability, such as - limit of things you can do/miss out on, pain, pain meds, how pain meds affect you, long term effects.. etc...

If so - does this go with line 8 (basis of claim) or 10 (nature & extent of injury)?

Or do you just stick to med facts?

2.) Calculating amount - is there a schedual/table anywhere to help calculate how much you should ask for?

3.) Do you need to re-send all the med recs that are in your c-file or do they get it all from VARO? We have 1151 "at the rater's desk"........ what happens if FTCA filed before decession made? (Don't want to run out of time to file)

[Berta]

If the 1151 claim is successful- send the award letter to VA counsel handling your FTCA claim.

And Vice versa. If the FTCA succeeds before the 1151- send the VA a copy of the settlement papers in support of the Sec 1151.

# 8 is your statement of the malpractice, negligence, and/or improper medical care that occurred.

I put "Chronic and continuous misdiagnosis, improper evaluation of tests results, to include EKG and ECHO, and also inappropraite and contraindicated medications," and "lack of significant PTSD therapy, only occurring after Congressional intervention." I expanded on additional pages.

# 10

This statement is how these negligent medical errors caused you additional disabilty.

In my case , they caused my husband's death. (They never have addressed the PTSD part but I think this caused them to re-open an old CUE I had this past August) A vet did win in the past a lot of money by stating that the VA itself caused his PTSD.If I can find that I will post it here.

I attached the Death certificate for this question.

Yes I would put the documented additional disabilities you have incurred -that they caused by their negligence- in this part.

# 11 Witnesses

Here I listed all VA doctors who had malpracticed against my husband and put the VAMC name and address where it occurred.

# 12b Under Personal Injury put Millions and make sure you put the exact same amout under 12 D.

The point of putting millions is to make sure that this figure is high enough.Some vets who have turned down settlements from VA , then by going to the federal court -have won extremely large amounts of money.

But they take the chance that they could lose at federal court.Settlements with the VA tself are always the best bet-in my opinion.

If a vet puts $100,000- their claim could be worth much more but the VA will hold them to $100,000.

Regional or General Counsel will obtain the complete med recs.But I would-if I were you- attach copies of the specific records showing malpractice with your FTCA SF 95 form as well as any records that show your additional disability due to the malpractice.

I strongly suggest that an IMO is the best bet for Sec 1151 claims as well as FTCA claims, unless you are willing to do what I did- I studied medicine ,especially cardiology to be able to fully support my FTCA claim.

It tooks many months, many trips to medical libraries- no good internet in those days-

many denials on the 1151- and then finally the evidence spoke for itself and was "indefensible" negligence per the VA.

I had re-opened my husband's 1151 claim- which he wanted me to do if he died- in his 1151 claim he predicted his own death. He felt since it took our Congressman to get him proper PTSD help, they probably had misdiagnosed his other conditions too. He was right.

If you have specific evidence that supports your claim you can do this without an IMO-

I know of vets and widows who did it themselves and succeeded.

BUT the VA will fight you as much as they can without the IMO- by stating you are not a medical professional, therefore your opinion is not probative.

In that case you must stand firm when you deal with counsel and the medical team at VACO-

and make sure they know that the evidence speaks for itself.

The FTCA statute of limits is two years from the date of your knowledge of the malpractice.

The SF 95 must be at counsel's office before those 2 years are up. I helped a vet with what appeared to be malpractice. He could not remember where he sent the Sec 1151 I prepared and did not go to the vet rep I directed him too. I helped him with the SF 95 and found some VA med recs that supported his claim.I thought he would mail it right away.He waited until the last minute to mail it, asked a hospital employee to do that for him,as by then he was hospitalized again, and a week later counsel called him and told him he had missed the deadline. That claim was over. They are firm on the SOL date.

Sec 1151 awards are offset by the settlement.

Hope this helps- and nothing could help more then an IMO.

I mentioned before that 3-4 monhs after counsel got my SF 95 he wanted to settle with me. I had already proven the case and he had obtained a VA medical report that supported my charges.Then this report disappeared and I was told by the VARO it never existed-the VA then strung my 1151 and FTCA claims out for 3 more years because of this VA medical report that did not exist.

I found it in my c file 2 years ago.It is right here-as I checked my original SF 95. It fully supported my charges-the report is dated 2 months after I signed the SF 95.The VA lawyer and this doctor retired that spring.

If I had obtained an IMO myself -they could not have pulled that on me.

[gwvet90]

Thank you Berta,

We have decided to file & I just want to be sure I do it right, so a couple more questions....

1.) Can you file the form 95 & then get an IMO or send any additional info? Or do you have to send it all at once?

2.) Can you file yourself & then retain a lawyer at a later point if you feel you need one?

3.) Does the FTCA have to be filed in the same state the 1151 claim was filed ?

The malpractice occured in a different state.... but I filed the 1151 at our local RO .

Is it possible to file the FTCA in the state the malpractice occured ? even though the 1151 is still being "rated" at a different RO?

If we do have to file it at the same RO - are there different people that handle the FTCA's than those that handle S/C claims?

4.) What about sending it to District rather than Regional?

Are there specific cases that can go there? What address would I use. Would it be a longer process than the 6 months or is that the same?

Thanks for all you advise

[Berta]

1. I say file the SF95 form ASAP-and refer them to the medical records as proof of the malpractice.Send a copy of the IMO as soon as you get it.

2. I guess you could get a lawyer at a later date- I really dont know- I didnt have a lawyer.

3. I would call General Counsel in Washington and ask them about this. It could be an important jurisdictional question-

1-202-273-6660 -maybe best to ask them before you send the SF 95 to anyone else-

District Counsel is technically Regional Counsel-I think they changed the name from regional to district counsel when they re-organized the VISN network.

The regional offices of VA forward these claims to their regional counsel, they do not work on them at the VARO itself.

With good evidence-as I mentioned maybe somewhere else- these claims can be awarded in a few months or can take years.

If you are in Western NY and in jurisdiction of the Buffalo VARO I can give you via email Regional Counsel's phone number-but maybe the best bet is to call General Counsel in Washington DC.

Just about everyone who answers the phone there is a lawyer or they will refer you to a VA lawyer ASAP.

You raised good questions that I dont know the answer to as to who should actually get the SF 95 if the malpractice occurred in a different state.

Although I filed my recent FTCA claim with the Buffalo VARO, I also sent a copy of it to General Counsel in Washington and have discussed it already with regional counsel in Buffalo. The RO did pass it on to him right away. It was an unusually FTCA claim so I called him up and talked to him about it.

Actually I just remembered - the regional counsel in your state should have a listing in the phone book-of course the VARO 800 people never give it out. This would save you a call to DC.

[gwvet90]

Thank you Berta,

Could we just file 95 directly with General Council in Washington?

[Berta]

Sure- that might be the best thing to do. They will either handle it there or refer it to the reginal counsel who has jurisdiction.

[gwvet90]

Thanks, I think that is what we'll do -

Do you have an address for General Council Washington D.C. ?

Also - is it about the same time frame (6 mths) -

When it comes to settlements - are there negotiations involved? Do they make offers & you make a counter offers, or just reject/accept.

How many times do they make an offer during the 6 mths? Is it a 1 time thing or are there several offers?