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Guest Speaking Out

Medical Malpractice At The Va-indianapolis

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Guest Speaking Out

I am a 35 year old veteran who is a rape survivor from active duty in the USAF. I filed charges and the rapist was given an other than honorable discharge lieu of court martial. It was explained to me that..."the rape wasn't violent enough for him to get any real jail time." This happened in 1993. I served my enlistment and was medically seperated from the AF. I had two surgeries while in. I filed for my VA benefits for PTSD, Depression, endometriosis, and migraines. I was rated at service connected for all, but the PTSD was the only compensatable at 10%. I use the VA here in Indianpolis for my healthcare. In Nov. 2003 I had an unneeded surgery due to a nursing. The nurse looked at the wrong lab results and verbally reported them to a nurse practitioner who verbally reported them to the doctor. I had some complications after the surgery. The pain medication stopped my bowels from moving and I was in extreme pain. Upon speaking with the doctor on call, she said some things that didn't make sense to me. I am a lab tech and I understood her medical talk. I questioned her, but she gave me generic answers, but after a laxative, supository, at home enima and a visit to the ER for a more powerful enima, my bowels started moving again. I followed up the next day with the women's coordinator at the VA and she was unable to pull my lab results up. They showed as pending. That means the results were not complete or certified. I knew that the only other time I had been seen at the VA in 2003 was back in Feb. when I had had a miscarriage. The women's coordinator let me know that the hospital administrator and the chief of ambulatory care had been made aware of the situation and would be contacting me. When the hospital admistrator called I asked when their investigation would be complete so that I could know what happened and he said he didn't know. I explained that their are protocals in place for reporting and investigating such errors. He said he would get back to me the next week. That week I had a conference call with the admistrator, chief of ambulatory care and the women's coordinator and was told..."Upon their investigation and speaking with the nurse involved that she looked under lab results not pending results and she reported out the test result from Feb. of that year." The hospital admistrator asked me what they could do to make this right. I told him that I understood what he meant, but I wasn't prepared to talk about that. The women's coordinator noticed the change in my tone and voice pattern and asked if I needed someone to talk to. I said yes, but not at the VA. She set me up with someone at the Vet center. I spoke again to the hospital administrator and asked what mechanism they were going to put into place so that this couldn't happen to someone else. I explained that all other major hospitals have a safety step in their computer to where if a nurse/tech looks at lab results they can only see current admissions or a 7 day range. If they want to look at something older they have to physically type in a date range. This would have saved me. He explained that the VA in Indy is part of a national system and that no changes would be made. I inquired about nurse/tech retraining to show them how easily this mistake could be made. They catagorized this error as a human error. That is true, but they have a system failure, because it is to easy for the error to occur. I told him that maybe I need someone else to handle this for me, because I couldn't handle it myself. He then offered me 15,000 dollars to no get an attorney involved. That was the last converstion I had with him. Now, when you sue the government you have to give them 180 days notice and then you go into negotioations with the VA. We did this and after two years the offer they made me in writing was 15,000 dollars. I declined it. Offers went back and forth, all of which I declined. There are many more ugly details, but to get to the point... We just had a settlement conference with a Federal Magistrate and a U.S. attorney is handling the case for the VA. They wanted to come down from their last written offer because they want an offset from any money I received from the VA from the time of the malpractice to the time I get anything for the malpractice. Also, they want to hold my disability payments until the monthly amount equals the malpractice amount. Now, the money I get from the VA monthly is for my service connected disability that I came out of the AF with that I didn't have when I went in and the tort claim is for medical malpractice. They are two seperate issues, but the VA says they shouldn't have to pay twice. If the malpractice had occured at a hospital other than the VA, the VA couldn't come and say we are going to rduce your award by what we have already given you for your service conncted disability and hold your benefits until the monthly VA amount equals what you get from this hospital. The message they are sending is that if you serve your country and you come out with a service connected disability and apply and are approved for VA benefits then the VA gets a pass on anything negligent they might do to you. Has anyone else come up against this? If I win my case it will set a precident that the VA be held accountable, but the U.S. attorney already let us know the VA will appeal it. If we lose, the precident will be set in favor of the VA. This happened to me in 2003 and it has been 3 years. Our court date is in Nov. 2007 and the judge said we'd get a ruling in 2008. If the VA appeals the decision, I might not be done with this unitl 2009. There is much more to my story, but the details are very ugly and private, but what infuriates me so much is that if the VA had taken my suggestions about upgrading the computers (a software issue not hardware), retraing their staff I probably wouldn't have sued, but they have tried to make me feel as though I am only in it for money, which is not true or I would have immediately sued and not given any time researching what changes they could make to better their system and make it safer for our Veterans. I want to make it so that no other Veteran goes through this. I consider myself a pretty with it patient, especially since I worked in health care, and if this could happen to me, what are they possibly doing to other Veterans who never question their doctors. Also, I had the surgery on a Tuesday, my complications started on Wednesday night and I followed up on Thursday. The VA new their was a problem, they didn't ever notify me. If the complications didn't arrise, I probably would have never of known. If anyone has any advice for me of how to fight the United States of America, PLEASE help. We are all we've got and we need to stick together.

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Welcome aboard here veteran-

You sure have been through a lot lately-

OK_ the FTCA- I won a settlement when the VA admitted to killing my husband.

Then I won Section 1151 benefits for DIC for an "as if " service connected death award- a nice way of saying -we did him in---

The VA offset my DIC by an agreed amount- as I administrated the veteran's estate-

I was not an executor-

I did start to see DIC checks until about 2 years ago- until the award less the offset was paid back-

We have similiar situation-

I agree with you- but these regs have never been tested-

Why should the VA offset your SC award? That is a separate situation-

Question-did you file a Section 1151 claim also?

In 2003 I discovered my husband's malpractice death had involved hiding symptoms of diabetes mellitus- service connectable in Vietnam vets due to Agent Orange Exposure.

I filed a claim for direct SC death-

The FTCA claim still stands as separate claim. I feel they would owe me a REPS benefit, funeral expenses, some Chap 35 refunds and maybe a better Chap 35 delimiting date-

But then I realised what about sending me the offset- SC death makes malpractice a moot issue-

So I see exactly where you are coming from----

It seems to me if you had filed Sec 1151 claim and was awarded "as if" SC under that for additional problems their med staff caused- they could have offset that award-

but they want to offset a direct SC award? This is outrageous and only if you and me and maybe a few others out there fight this, then a precedent will be established because there is no precedent for our type of claims.

I am stunned that you got an offer from the hospital administrator-

my offers came from General Counsel in Wash, DC.

But the hospital director filed a report within months of geting my tort claim that support it and regional attorney wanted to settle with me within months- long story- the MF showed up-

(mysterious force who makes the evidence disappear) and then it took three more years.

I commend you highly for pursuing this- dear veteran-I thought if I fought them they would not misdiagnose another vet like this at the local VAMC but 2 months after Rod died his best friend came here-and within minutes we filed a Sec 1151- they almost killed him too-he got 100% plus SMC for thier medical error and didnt want to sue.His claim took less than 4 months for award. The malpractice was obvious.

Then I found not long ago- that the VA did not take proper steps as far as informing JHACO or any any other entity who should have known about the wrongful death of my husband.

They are pretty good at hushing up this stuff-

You made a good point-

"The VA new their was a problem, they didn't ever notify me. If the complications didn't arrise, I probably would have never of known."

If my case Rod filed charges against them 6 months before he died and stated in the Sec 1151 claim he thought they would kill him.

When he dropped dead suddenly in our barn- at 47 years old -I knew something was odd-

I filed the tort right away and then got the autopsy report and figured out some med entries and sure enough-he was right.

The offset crap is written in granite-these are the regs-but you can file a NOD on this as soon as it comes out of your SC check and argue your point.

As soon as I get a decision on my AO claim I will probably filing a NOD ASAP too as to the offset-

10% SC for PTSD is way too low veteran- for what you went through- then again- if this gets to higher rating -they will try to take it all anyhow-to recoup the FTCA.

These regs have never been challenged-me and you and maybe some others out there-

we have to fight for this-

SC disability is a disability independent of a malpractice award.

VA pulls 38 CFR 16.22 sometimes- prohibition on duplication of benefits-

malpractice awards are not the same as direct SC awards.

They (VA) have to be taught that lesson and it might take a battle.


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Welcome to Hadit I am sorry that you were not treated better by the Military. You deserved better. I hope that you win your claim.

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Guest Speaking Out


Thanks for your response. How did you find out the VA didn't report to JHACO? Also, what is a section 1151 and and NOD. I have an attorney, but I've done more work on this that he has and I'm trying to get as much info as possible. Thanks! Lisa

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"How did you find out the VA didn't report to JHACO"

Ironically JHACO did a regular SOP review of the VAMC the same week that the services were there for my husband-he was buried in the VA Cemetery over a month after he died.

I invited them (JHACO) to come to all this- of course they didnt- but it was still big news around the hospital that this young Vietnam vet (47)had died suddenly , many knew him at the VAMC=Rod had worked there and he was part of the Day treatment and PTSD programs, and I was beginning to question his doctors.The VA had sent him another vets meds in the mailer days before he died-the pharmacy was jumping hoops on that one-

and that news too was still all over the VAMC.

Years later I could not get any reports from JHACO under FOIA and they stated about 2 years ago that this was part of old records that do not exist anymore.

I called the Chief of the NY ViSN also-and he told me he should have been informed of all this but wasn't.

This could have easily been a wrongful death that no one ever questioned-

and no one would have ever found out-

One VAMC covered up what the other VAMC had done.

They did file an incident report when they found out they had mailed him another vets meds by mistake days before he died.

I say they covered it up-and recently told the RC I finally found out not long ago.Long story there ---However not a single medical record or entry was ever changed or altered by the VA. I helped with other claims like this and they never altered any records.They dont do that.

They sent me the complete med records and the records themselves held the proof of malpractice.

It involved countless doctors and incidents- not just a few-

the IMO I got from a former VA doctor was from the only doctor who was ready to diagnose and treat the veteran for his true condition.He was overruled at the time.

NOD ----Notice of Disagreement- the formal beginning of an appeal.

In the Notice of Disagreement you state why you disagree with any denial they have made on a claim.

Section 1151. 38 USC- claim- this is a claim for when the VA has caused a veteran additional disability due to medical error or malpractice.

No time limit to file. Rod filed a Section 1151 claim because his PTSD was not being treated properly. He added that he feared -since the PTSD therapy he received was so deficient that they probably would misdiagnose other conditions he had, like strokes and heart disease and that they would ultimately cause his death. He told me to make sure I re-opened this claim if he died.

He died 6 months later.His charges were proven true.

Once a FTCA tort is filed the Section 1151 claim shoud state basically the same charges as in the tort claim on the SF 95.

A vet considering Sec 1151or FTCA should get copies of all their med recs from the VA before filing this types of claims.

They don't change medical records, just that- that is when it seems they start to lose and misplace the evidence. They write 1151 all over the c file for these claims and will stall them if they can.

I had no attorney nor did I have any independent medical opinion for my FTCA.

I dealt directly with VACO Medical team,the RC and the GC myself.

Edited by Berta

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      Criterion Negative alterations in cognitions and mood associated with
      the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: [X] Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., "I am bad,: "No one can be trusted,: "The world is completely dangerous,: "My whole nervous system is permanently ruined"). [X] Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others. [X] Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame). [X] Markedly diminished interest or participation in significant activities. [X] Feelings of detachment or estrangement from others.
      Criterion E: Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: [X] Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. [X] Reckless or self-destructive behavior. [X] Hypervigilance. [X] Exaggerated startle response. [X] Problems with concentration. [X] Sleep disturbance (e.g., difficulty falling or staying asleep or restless 
      Criterion F: [X] Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
      Criterion G: [X] The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
      Criterion H: [X] The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or
      another medical condition. Criterion I: Which stressor(s) contributed to the Veteran's PTSD diagnosis?: [X] Stressor #1
      5. Symptoms ----------- For VA rating purposes, check all symptoms that actively apply to the Veteran's diagnoses: [X] Depressed mood [X] Anxiety [X] Suspiciousness [X] Chronic sleep impairment [X] Disturbances of motivation and mood [X] Difficulty in establishing and maintaining effective work and social relationships [X] Difficulty in adapting to stressful circumstances, including work or a worklike setting
      6. Behavioral Observations -------------------------- The veteran arrived on time for his scheduled examination. His identity was confirmed by having him provide his full name and date of birth. The veteran presents as a tall, obese, Caucasian male who appears the stated age. He was dressed casually and exhibited good grooming and hygiene. He had tattoos visible on his lower and upper extremities. His posture, gait, and psychomotor activity were within normal limits. His manner of interaction was cooperative, courteous, and friendly. His speech was normal in rate, rhythm, tone, and volume. His thought processes were clear, logical, coherent, and goal-directed. Veteran reported his mood to be depressed, with affect congruent. He denied suicidal ideation, but admitted to thoughts of death and wondering if others would be better off without him. He denied homicidal ideation as well as auditory and visual hallucinations.
      7. Other symptoms ----------------- Does the Veteran have any other symptoms attributable to PTSD (and other mental disorders) that are not listed above? [ ] Yes [X] No
      8. Competency ------------- Is the Veteran capable of managing his or her financial affairs? [X] Yes [ ] No
      .9 Remarks, (including any testing results) if any -------------------------------------------------- In my opinion, the veteran meets DSM 5 diagnostic criteria for posttraumatic stress disorder, which is more likely than not secondary to military trauma. In this veteran's case, there is a strong component of shame that is also associated with his military service and is foundationally related to his depressive disorder. His experience of freezing during 3 artillery attacks is something that is associated with feelings of overwhelming shame, worthlessness, helplessness, and inadequacy for the veteran. These thoughts and feelings contribute significantly to his depressive condition, and contribute meaningfully to his PTSD symptoms as well. The veteran also experienced significant losses during military service that have likely aggravated his PTSD and depressive conditions. Notably, the veteran's grandfather died in 2011 when the veteran was deployed to Afghanistan, and his best friend committed suicide on Christmas day in 2013. Both losses were experienced by the veteran as emotionally traumatic and contribute to his symptomatology. The veteran has developed a dysfunctional coping mechanism of excessive alcohol intake in his efforts to suppress negative feelings associated with his traumas. As his excessive alcohol use appears to be largely in the service of avoidance of distress and suppression of intrusive/reexperiencing symptoms, it is my opinion that his alcohol use disorder is secondary to his PTSD and depressive disorders. The veteran's mental health symptoms have severely impaired his functional capacity. He is socially disengaged and avoidant. He has difficulty expressing himself emotionally, showing empathy, or forming emotional bonds with others. Occupationally, the veteran has exhibited significant dysfunction as he has been unable to maintain employment due to anxiety, depression, avoidance, alcohol abuse, irritability, shame. Hs shame about his reactions of freezing during artillery attacks prompts him to avoid interpersonal interactions as much as possible as he fears that the topic of his military service will arise. Recently, the veteran has begun outpatient mental health treatment in the form of individual counseling, and he is awaiting an appointment for trial of medication.
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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:

      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis

      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.

      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 


      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.


      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

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