ptsd Medical Malpractice At The Va-indianapolis

[Guest Speaking Out]

BERTA,

I would like to talk with you in a little more detail about my situation. You are so knowledgeable and I want to arm myself with all the info I can. I think you might be able to give me some things that I can use and stop letting the VA have the upper hand in this. You can send me an email if you are willing to put your boots on and help me do some work. Thanks! Lisa

[Berta]

"We just had a settlement conference with a Federal Magistrate and a U.S. attorney is handling the case for the VA"

you mean this has been filed in the federal court already? Did you file Pro se or do you have a lawyer representing you?

FTCA-if a tort claim gets to this point- a lot depends on the state you are in-

from : http://www.lectlaw.com/def/f071.htm

"The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(B). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also Richards v. U.S., 369 U.S. 1, 11-13 ('62)."

Best way to keep the upper hand is to have an idea of what you want and try to get this amount from them=or make sure your lawyer does-

I am only familiar with NY State federal regs on torts and forgot most of what I knew-

If you go to the BVA web site:

http://www.va.gov/vbs/bva/

you can put Offset or FTCA into the search button and see how the VA treats these claims as far as the offset goes-

what is unusual here is that usually a Section 1151 claim is filed too along with the Tort.

The offset is taken out of the Section 1151 award.

I feel it should not involve your PTSD award at all - who said it would?

I wonder if the VA will consider the Section 1151 as an inferred issue and they could recoup the offset from that award. But I would not depend on them to infer that.

Do you have a service officer or vet rep?-it is not too late to file a Section 1151 claim.They could support you on the offset issue.

If you dont want the VA offers, and go to the federal court- one takes a chance doing this-

I worked for lawyers for a long time- their positions were always to try to settle out of court.

If you proceed into the Fed court -or are there now- you need a lawyer familiar with the state laws to fight them as the VA will

certainly fight back rigorously in the Federal Court-

In many cases a veteran is better off filing a Sec 1151 claim without even filing a tort-

unless they are good investors and can recoup the offset by playing the stock market.

[Berta]

forgot to mention- the BVA web site might give you a good idea of what the VA is willing to offer as to the disability that the VA caused you-

Obviously wrongful death claims or claims from living vets with- catastrophic SMC issues -due to VA malpractice get highest awards-

Also some states have caps on certain Tort claim awards-I got as close to the state cap limit on my FTCA award as I could when I dealt with the VA general counsel.

The offset- as I mentioned -we have similiar circumstances-

I am waiting for a direct SC death award and I already told VA I want my Sec 1151 offset refunded.

There are no cases like this at the BVA or CAVC nor within the VBM-

either the few cases VA had like this were resolved at RO level with nothing we can access on them-or no one has really ever challenged the regs on this-

That is why it is important that you fight any potential reduction of your SC comp- as well as- in my opinion-you should file a Sec 1151 claim-if you haven't- they could take the offset from the 1151 award and you would maintain the direct SC award.

The controlling authority for these regs is within:

http://www.warms.vba.va.gov/admin21/m21_1/...3/ch03_secd.doc

I already told VA I want my Sec 1151 offset refunded-when they award SC death-but I expect a fight and have already prepared the battle plans and evidence for that- to include M21-1 above-Part IV Subpart B Chap 3, Section D.

We have no precedent for this type of situation that I am aware of-

yet it clear to me that the VA cannot offset a direct SC award with a malpractice tort settlement-

But they will certainly try if they can.

A good service officer or vet rep should be able to support a Section 1151 claim for you.By the time the settlement is resolved, the Sec 1151 claim will have documented supportive evidence (the results of the VACO medical report)and they could then rate the 1151 disability and take that amount to recoup the offset.

[Guest Speaking Out]

Thank you Berta, you have been a huge help. I am going to file the section 1151 on Friday. I knew nothing about it until you mentioned it. Yes, I have an attorney. He is a medical malpractice attorney and he has dealt with the US attorney before for other federal agencies, but not the VA. I am going to give him all this info and go from there. Let me get your oppinion on this idea. I contacted my Senators and Congressmen and the two Senators are interested in the process in which the VA is putting me through. Also, I spoke with the Deputy Director of Veterans affairs and Rehabilitation for the American Legion in Washington, D.C. She was also interested in how the VA is conducting itself. I sent my proposal of the safety change for the computer system to them as well as the DAV and VFW. Both of those agencies took my idea to the VA and were told that I had filed a tort and they would not comment on my idea officially until after the tort is settled. Will it do any good or could it hurt to make my situation public? My attorney has been being very cordial with the VA regional attorney and now the US attorney not wanting to antagonize them because they are the government and can dig their heals in and make this take forever. My attorney is coming around to see that they are going to drag it out as long as possible anyway and I want to be viscous. Do you think a little media coverage or serious inquires from these two Senators and the American Legion will help or hurt?

[Berta]

" Do you think a little media coverage or serious inquires from these two Senators and the American Legion will help or hurt?"

I dont think it will help a bit as far as the tort claim goes-

But I think the VA might be interested- however- in any way they could prevent this medical problem from happening again.

Unfortunately in my husband's situation the VA got rid of some of the negligent docs- but these docs ended up -in some cases- at other VA facilities-

I think it is easier for the VA to pay out negligence claims here and there rather then try to correct the problems that create these claims.

[gwvet90]

Berta said " forgot to mention- the BVA web site might give you a good idea of what the VA is willing to offer as to the disability that the VA caused you-"

How can you find this?

Thanks