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)

[sbrewer]

Should you always file a FTCA claim if you file an 1151 claim? Also, if you won an 1151 claim but was awarded 0%, would there be a point to filing a FTCA claim? How would they re-coup there money if you had a 0%?

Just wondering,

sbrewer

[Berta]

Office of General Counsel

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC 20420

Hard to say on the time frame- they will usually deny the claim if the evidence doesn't warrant it within 6 months-

In a claim with probative evidence, it seems this 6 months is extended.My FTCA was dated Match 1995 but negotiates were in 1997. They usually get a medical opinion from VACO.

The VACO medical team will review the medical records in great detail.They won't miss anything.

It is hard to say when they will begin negotiations.A lot depends on the time it takes for the VACO Med Team review.

I suggest that you see if your state has a settlement cap for out of court settlements.Some states do.

It gives you an idea of how high you can go.Unless you intend to go into a federal court.

When counsel called me to begin negotiations we did go round and round but I knew what I wanted.

It took about a week and then we agreed.It started out with a VA offer - but I asked counsel what was the high end he had already been prepared to offer me and that is what I would probably take.

then he told me I was pretty tough on him and I told him well-the VA made me this way-

at that point the VA knew they had to pay and this part really went smoothly. I mention all this because there is no reason to feel intimidated at all by VA lawyers or doctors.I had talked to their med team and to counsel many times before we got to this point and felt comfortable in asking for what I wanted.

Numerous RO screw ups to that point had almost caused a big problem in the FTCA case and by calling DC myself a few times- I found out exactly what happened and corrected a major RO screw up-that VACO was unaware of.

They will not release their medical reports until after settlement and I got the report by filing a FOIA request.

It was shocking. Every charge I made was found to be malpractice except one.They had sent him someone elses meds and he had taken some of them.This was for the dosage he should have been on for 6 years.

This was a major pharmacy error but not malpractice.

[Berta]

almost forgot to reply S Brewer-

no there would be no point in filing FTCA claim for a "0" rating.FTCA claims are based on monetary damages as to the extent the veteran's medical care caused them further disability.

Again I need to add- a good strong IMO is the best bet for supporting these types of FTCA claims.

Unless the claimant is fully able to specify the malpractice as to date and entries or test results in the medical records and also prove that the malpractice caused documented disability.

These FTCA claims are very serious claims against the US of A- that is who you actually settle with-the United States of America-and not really with the VA.

Absolute proof of medical malpractice and additional documented disability directly due to the malpractice are the dual criteria for FTCA claims.

[gwvet90]

What if as S brewster ask - you won 1151 - and got 0 - However - that was because they lowballed & the injury is really more sever.

Would FTCA be a way of getting out of their rat maze and not spending 5 years back & forth with NOD & BVA? Or would FTCA consider the RO's 0 as a fair assessment & use that against you?

Also are the 1151 raters the same as the S/C raters ?

Or are they different just in same office?

[otey2171]

FTCA claims settled for less than $2500.00 are settled with the VA and not the US of A.

[Berta]

Otey-I didn't know that-thanks-

FTCA claims are not a way out of the long VA claims process.

I believe 1151 claims are handled by experienced VARO employees that might have more expertise than raters.

However- on Sec 1151 claims- the VA gets a VA medical opinion and that is usually shaped to go against the 1151 claim. I got at least three VA medical opinions or maybe four that went against my Sec 1151 claim.I found holes in these opinions and rebutted with documented medical evidence.

All of this time the missing VA medical report that totally supported the claim was in the c file but they told me it did not exist.

The medical evidence is the only thing that will eventually generate an award under FTCA or Section 1151.

Everytime I got a denial with a VA med opinion- I found more evidence of malpractice in the med recs.It was a Prime Facie case-I never considered getting an IMO because once I discovered the initial misdiagnosis-everything began to fall into place.But that was a lot of work.In those days no one was advising claimants to get IMOs. My DAV NSO never mentioned this.The veteran's community (Prodigy)

never discussed IMOs.The BVA was not online in those days.And in the 1990s the ROs were reading our evidence much better.

A good IMO is the only way to really assess whether the VA messed up medically enough to cause a ratable disability .I suggest an IMO doctor who can see the vet in person for 1151 and FTCA claims-and be able to order any tests, MRIs, etc, that have not been done by the VA and maybe should have been.

I believe that a veteran in the VA system-who feels that they were malpracticed on and has symptoms or problems that VA is not addressing well-should get out of the system and get to a better doctor.

In the long run, if a private doctor finds evidence of past malpractice there are two benefits -

the private doctor would most surely be willing to write an IMO -or if not, their records could be used by a doctor who would write an IMO (some private docs might not want to make a statement of negligence)

and the best benefit to this is the fact that the veteran is now getting proper medical care that could stave off many more problems down the road.

The VA considers malpractice and negligence as medical care that is not the same as that within the standard medical community.

I can only use my own example of what I mean-Rod collapsed at work (VA) and was rushed over to the ER. They did EKG . They didnt tell him the results and said they would contact him if there were any problems. They diagnosed him as having a sinus attack, gave him Sudafed and sent him home.He was in a daze for three days as his boss called here relentlessly for him to return to work.

The EKG revealed significant heart disease. Another EKG and ECHO years later revealed advanced heart disease. They never told him.His heart disease was untreated and he died due to massive heart attack.

This lack of proper diagnosis and medical care was malpractice as it did not conform to standard medical procedure. That is the basis of Sec 1151 and FTCA claims.