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)

[carlie]

My FTCA was won through court ordered mediation -- I also filed under 1151

and was denied for this as the claim was sexual assault by VA doc. VA denied the 1151 under a 1992 PRECOP of GC. I'd still like to blow this out of the water,

just haven't figured how to do it yet.

carlie

[sbrewer]

Is a FTCA the same as TORT?

IF so.....Carlie,

IF you won the FTCA but not the 1151 how do they get the money back? I thought that they would keep the 1151 money until the amount won was "paid back". I probably have this ALL confused.

sbrewer

[carlie]

Is a FTCA the same as TORT?

FTCA is Federal Torts Claims Act

IF you won the FTCA but not the 1151 how do they get the money back?

They can't get the money back.

I thought that they would keep the 1151 money until the amount won was "paid back". I probably have this ALL confused.

My 1151 claim was denied -- so that pays me nothing, onlt the FTCA paid anything.

carlie

[Berta]

Carlie- do you have the number for the OG Pres Op?

Was this a situation where the VA found that the charges in the Sec 1151 claim incident did not happen during VA examination, hospitalization,surgery or under Voc Rehab?

But under FTCA the VA still found a VA employee liable?

If no Section 1151 award occurred they cannot recover anything from the FTCA money.

Was your Sec 1151 part of the Stay proceedings in Gardner?

I was denied under Section 1151, even after I won the FTCA settlement.

As soon as I had the paperwork from DC I sent it to the VA insupport of the 1151 claim.They completely ignored this evidence from the General Counsel and denied me again.

I called GC and then GC called the VARO and squared it away.

If your claim was caused by actions taken during exam, hospitalization, surgery or Voc Rehab-as the 1151 criteria states-

I dont see how they denied the Sec 1151 claim.But the scope of Sec 1151 is limited by law.

It seems to me- and a few 1151 claims at the BVA seem to bear this out- that say a vet has a regular check-up (VA exam) and then as they use a back staircase at the VAMC to get closer to where they parked, then say a doctor attacks them on the staircase , the VA cops come and arrest the doc and the veteran has sustained a broken arm due to the attack.

Under FTCA the USA would be liable for the damages but I don't think the criteria of Sec 1151 would cover this.

"Under 38 U.S.C. 1151, as amended, an

additional disability or death qualifies for compensation or

DIC if it (1) was not the result of the veteran's willful

misconduct; (2) was caused by hospital care, medical or

surgical treatment, or examination furnished the veteran

under any law administered by VA, either by a VA employee or

in a VA facility; and (3) was proximately caused by

carelessness, negligence, lack of proper skill, error in

judgment, or similar instance of fault on VA's part in

furnishing the care, treatment, or examination, or by an

event not reasonably foreseeable."

The scope of this criteria locks in Section 1151 claims to specific contacts with VA employees,during course of specific VA medical practice.

Edited November 29, 2006 by Berta

[carlie]

Berta,

Sorry I typed in the wrong year - it's a 1999 opinion. This is the URL for the opinion VA used to deny my 1151 claim and I'm posting the section of the opinion that VA printed and mailed me in bold print.

carlie

http://www1.va.gov/ogc/docs/prc1-99.doc

4. The term “treatment” is defined as “the institution of measures or the giving of remedies designed to cure a dis-ease,” Stedman’s Medical Dictionary 1320 (3rd ed. 1972), or “the management and care of a patient for the purpose of

combating disease or disorder.” Dorland’s Illustrated Medical Dictionary 1736 (28th ed. 1994). Accordingly, section 1151 is most naturally read as authorizing compensation for disability caused by procedures or remedies administered by VA for the purposes of combating a disease or injury. A sexual assault generally would not be within the ordinary meaning of the term

“medical or surgical treatment.” The fact that a sexual

assault occurs coincident with the administration of medical or surgical treatment or is committed by a treating physician does not provide a basis for compensation under the plain lan-guage of 38 U.S.C. § 1151. Notwithstanding the proximity in time and place to medical or surgical treatment, a sexual

assault would ordinarily be an independent and intervening event which does not itself constitute medical or surgical treatment. We note, however, that, if the particular actions or procedures which are alleged to have constituted an assault are otherwise within the ordinary meaning of the term “medical or surgical treatment,” then compensation may be paid under section 1151 for disability caused by such actions or proce-dures, even though the claimant has characterized those

actions as an assault. Accordingly, it may be necessary to make a factual determination in a particular case as to whether the actions claimed to have caused disability may

reasonably be considered part of the “treatment” designed to combat a disease or disorder, or whether they were independent actions which were merely coincidental with such treatment.

5. In other contexts, primarily involving matters of insur-ance coverage, courts have held that sexual assault by a phy-sician does not constitute “medical treatment” or “medical services.” In D.D. v. Insurance Co. of North America, 905 P.2d 1365 (Alaska 1995), the court concluded that a physi-cian’s sexual assault of a patient did not arise out of medi-cal treatment or service for purposes of a business owner’s insurance policy which excluded coverage for injuries arising out of medical treatment or service. The court reasoned that “for the sexual assault to ‘arise out of’ medical treatment or service, the medical treatment or service must be more than just the site of the assault.” 905 P.2d at 1368. The court noted that its conclusion represented the consensus view of the courts which had addressed that issue:

[T]here is . . . consensus that when a physician causes an injury that is wholly unrelated to the treatment, he has not rendered “medical services or treatment” to the patient. In particular, courts which have considered cases involving sexual

assaults by health care providers held that such

assaults do not “arise out of” medical treatment.

Id. at 1369 (citing cases from several jurisdictions). Al-though not controlling for purposes of interpreting 38 U.S.C. § 1151, these cases are consistent with our conclusion that

sexual assault by a physician would not be within the ordinary meaning of the term “medical or surgical treatment,” as used in section 1151.

HELD:

a. Section 1151 of title 38, United States Code, as applica-ble to claims filed before October 1, 1997, does not authorize payment of compensation for disability incurred or aggravated as the result of a sexual assault by a Department of Veterans Affairs (VA) physician which occurred while a veteran was

receiving medical treatment or an examination at a VA facil-ity. For purposes of compensation under those provisions,

the disability must result from the medical treatment or

examination itself and not from independent causes occurring coincident with the treatment or examination. A sexual

assault generally would not constitute medical treatment or examination within the meaning of 38 U.S.C. § 1151 and would not provide a basis for compensation under those provisions. However, if the actions or procedures alleged to have consti-tuted an assault would otherwise be within the ordinary mean-ing of the terms “medical treatment” or “examination,” then compensation may be payable under section 1151. Accordingly, it may be necessary to make factual determinations in individ-ual cases as to whether the actions or procedures alleged to have caused disability constituted part of “medical treatment” or “examination” or were independent actions merely coinciden-tal with such treatment or examination.

b. VA may pay compensation under 38 U.S.C. § 1151 for psychi-atric disability due to a disease or injury incurred or aggra-vated as a result of VA hospitalization, medical or surgical treatment, examination, or vocational rehabilitation.

Leigh A. Bradley

[Berta]

Yeah- the limits of Sec 1151 is how they get out of this type of claim-

However you sued under FTCA which is great! I hope they paid you enough!

What gets me is if a veteran went to a vet rep with a claim like yours -the vet might or might not suggest 1151 but they usually do not have a clue on FTCA claims and really couldn't help with them if they did.

I wonder if they fail to even suggest FTCA claims when they get situations like yours was.

The scope of FTCA is broader than Sec 1151.

Carlie- if they did award you VA comp,under Sec 1151, they would have offset it anyhow so you made out good in my opinion!