Tort Claims?

[Buck52]

If Veteran files a tort claim against the VA & Their Dr's Surgeons ect,,ect,,  for screwing up a veteran use of Hand because of Manipulation and tore the veterans tendons...From trying to Break the Chord in his hand with Dupuytren's contraction...none of the Dupuytren's in SC but VA Dr's Tried to correct it with  certain type of expensive Enzyme injections and pain killer injections ( Deaded the Hand) and Manipulated the fingers back to straight position. VA Diagnosed this as Dupuytren's Contraction 

if the veteran wins the claim  and  compensated  will they  add that to what the veteran is currently getting on his SC Disability? or is it a one time payment?

Anybody know?

.................Buck

[broncovet]

I think Berta may have answered this question about 6 months to a year ago, and she indicated you get both, if I recall. (But maybe I dont remember that right, because that is so "not VAola".)   But dont hold me to that, maybe Berta will chime in.  

[Buck52]

Thanks Bronco

I found this from Ms Carlie's post from 2011 Interesting.

http://community.hadit.com/topic/42506-a-brief-overview-of-the-ftca/

...Buck

[gunners7163]

No. A tort claim is separate from a SC claim. In order to get a SC disability you'll have to file a section 1151 as you would a normal disability claim. For a tort claim I'd recommend using a lawyer. You can be awarded both a tort claim and the 1151 but if you do win a tort claim your 1151 disability will be withheld until the settlement amount awarded of the tort is reached. Also if you win a tort claim it doesn't mean you'll be awarded the 1151 claim  I went through a tort claim last year and also waiting on an 1151 claim. I'll be glad to answer any questions you have. Best of luck!! 

 

Edited March 31, 2016 by gunners7163

[Chuck75]

I would be curious to find out what happens in a malpractice case when a VA contracted provider (say Choice program) is involved.

Going back to my work with government (DOD) and contractors, some of the contracts had clauses that at least partially protected the contractor.

 

[Berta]

Gunners 7163 is correct.

However I negotiated the offset with the General Counsel. This is a little off the question but might help someone else out there....maybe those Phoenix or Candyland survivors. Otrhers can jump down to the additional stuff re: Gunners reply *

In other words , they could only withhold a certain amount from my DIC ,for the offset ,so I didn't see a DIC check for many years.

BUT they over- withheld to the tune of 40 thousand...they kept many years of additional DIC , ignored my letters asking for correction,but paid that as well...when I re opened for SC death and the Regional Counsel called a CUE on them.

I didn't have a lawyer so I do not know if a lawyer can negotiate every type of FTCA offset situation. I think the fact that my FTCA settlement was for wrongful death

is why they did negotiate the settlement 0ffset amount. It was not a case from a living veteran. And the fact that I also won a claim for direct SC death in 2009 and then another claim for direct SC death 2012 required the offset refund.

This was an unusual situation. I have never found a similar case yet. In the AO IHD death award they subtracted the 30% SC for PTSD that my husband got in his lifetime from the AO IHD award (50% SC for IHD).But they did not rate under 1151 (part of a 2003 CUE claim I won) and obviously if one dies of a 50% SC, one was 100% at death for the 50% ...the prime COD on my husband's death certificate.

I have their award decision in appeals for the BVA and have won 2 or 3 more CUEs on that last year. They overlooked 2 General Counsel Pres Ops and I need to file another CUE on the decision because..oddly enough...(and I regret going off on a tangent here) I was thinking about that 50% this morning when I woke up....I know it is the wrong rating...it should be 100% SC as it was the prime cause of his death and contributed to the 1151 100% P & T stroke he had after their initial malpractice.

 

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*To add to what Gunners said,

If one succeeds in a FTCA tort , obviously they should succeed in any 1151 on the exact same disability because the evidence requirements are the same for both types of cases.

In spite of the fact that I sent them a copy of my FTCA settlement papers etc, as evidence for my pending 1151, they denied it without considering this probative evidence.

I didn't file GCY CUE against them, as I recall. I did call up the VA attorney who prepared my settlement and told him the deal was off.

I am not sure I  had received the actual cash yet from US Treasury. I rattled off enough to him however, to get him to contact the RO directly and

they then awarded the 1151 DIC claim right away. 1998.That is the decision they awarded SMC CUE on in  2012 and fixed other CUE errors in it last year.

I have never received any initial correct decision from my VARO and I fought every one of them.

The fact that they can deny a 1151 claim even with proof of malpractice due to a OGC settlement and tried to deny my successive 1151 issues is why

everyone should have a lawyer when they file FTCA and they certainly should file 1151 as well.

The 1151 claim should be worded and based on the same Cause of Action answer to one of the first SF 95 questions.

The evidence for the 1151 should be the same as it was for the FTCA.

This assumes that a FTCA case will be handled faster than a Section 1151 claim.

And that is because the Regional Counsels and the OGC are lawyers, so they love evidence and are willing and able to read it all.

A piece of advice.......do not rely on any RO to send them any evidence for any FTCA claim.

Send the RC or the OGC copies of the med recs or anything that might be in your C file that reveal malpractice ,yourself.

When VAROs see 1151 that is when the MF might show up...MF -the Mysterious force who removes critical evidence from your med recs and/or C file...

As a hardcore claimant for the past 20 plus years, I sure  know the MF well.

 

 

 

[Berta]

I forgot to add to what Chuck said.....

I think those contractors might well be fully exempt from FTCA but could be sued under other forms of litigation.

VA doctors do not need to carry malpractice insurance. An FTCA  VA settlement is made on behalf of the United States of America, and signed off by a VA attorney.

If a vet is farmed out through the Choice program...on one hand they might get better care than they got from the VA...but I need to look into what you stated because those doctors  might be totally exempt from 1151 and FTCA charges.