ftca legal info

[pwrslm]

I am trying to find competent contact for legal advice on an FTCA claim. Vet went to VA for help and they failed to diagnose lukemia. Vet went to non VA Dr and was properly diagnosed many months later. Treating non VA Dr stated in medical file that if it had been detected earlier, the vet would have lived much longer. He passed in June 2017.  VA failure to diagnose and treat issue.

Need consult w/atty to see if she has a case, if so what course of action to take. Been helping her with a claim for DIC but the VA denied SC  and generally "really screwed up" the decision. The non VA medical records (300 pages) and the nexus letter from the specialist (oncologist that treated him till he passed) were completely ignored. Both were faxed and mailed w/return rect!!

Spoke to widow this AM, she is ready to take the fight to them. Anyone w/experience  with FTCA and knows a competent atty please refer us.

 

Thanks in advance for helping!!!

[pwrslm]

Hi Bertha,

I will scan decision when it gets in. 

The DIC could not be approved without SC so I think that I would have to affirm SC for the AO linked CMML (Myeloid Leukemia). For any benefit to be awarded in the DIC claim, they  have to approve  the original claim that the Veteran filed before he died. I am assuming that both were approved at this point but I am not holding my breath because this is the VA and I know that everything has to be verified before anything is for sure.

I know that 1151 cases are a big issue, but the VA hides so much information from us at VAMC levels that most of the time malpractice can never be proven.  They have the basic records that most of us can retrieve on the HealthEVet web site or at the ROI office, but they never allow us to get to the records behind that where referrals and other conversations happen between providers. Those hidden records would prove actions and inaction by the providers and they probably think they are so smart to be able to hide all that from us. 

We are soliciting a letter from the original Oncologist that gave us the nexus letter for our case asking for her opinion on if the VA' diagnosed and treated the CMML  if the Veteran would have had any better odds. CMML usually isn't so fast, from the time the Vet was diagnosed to the time he died was 9 months because by the time it was diagnosed it had progressed to far and was resistant to treatment. If he had been diagnosed in the year prior to that,  we want to know if his chances of survival would have gone up. Most people with CMML live up to 5 and 10 years after being diagnosed, so this will be the key to the FTCA. I identified that the VA sent blood samples to the MAYO CLINIC and they noted more than 6 months before diagnosis that they should check to see if he had CML. The VA never acted on that notice. If we get that, we should fare well in any court with the failure diagnose and treat claim. I should have that in the next week.

 

addendum; Just got word that the MD didnt want to give us a letter on this. Gotta do some thinking on if this is possible now.

Edited November 1, 2017 by pwrslm

[Berta]

Yes, the VA will do all they can to 'hide' stuff,which they did to me regarding my FTCA/1151 cases - even denying that a favorable 6 page VA Peer Review had been done a few months after Regional Counsel got my SF 95 in 1995 ( I found the so called non existing Peer Review in 2003)

BUT     they really cannot hide  what is in the actual VA medical record. What I mean is that VA med recs contain numerous entries, Blood chem reports, test results ( which in my case I proved were interpreted wrong, and many were ignored) and these are the things that an independent doctor will look for.

Many private doctors are afraid to get involved in a potential malpractice issue against the VA or against any other medical entity.( or even for a direct SC claim) But there certainly are doctors willing to do IMOs/IMEs, regardless of the type of claim, if they have expertise in the issue.

You said:

" I identified that the VA sent blood samples to the MAYO CLINIC and they noted more than 6 months before diagnosis that they should check to see if he had CML. The VA never acted on that notice. If we get that, we should fare well in any court with the failure diagnose and treat claim. I should have that in the next week."

That sounds like Very probative evidence.

FTCA/1151 depends not only on outright blatant malpractice ( such as wrong diagnosis,therefore wrong treatment) but also on "Omissions of Acts"- part of my charges because they failed to act with medical diligence ,when the veteran's VA medical records showed for 6 years that their 'omissions' of proper acts caused the disabilities my husband had, to eventually cause his death.

With a letter from the MAYO clinic ,suggesting they rule in or rule out CML, that they ignored- in my opinion, that is definitely an 'omission of an act' and is against the standards of the "usual medical community"- another term I used in my SF95, because VA is supposed to diagnose and treat any vet in the same way the usual and standard medical community ,(the  non  VA medical community) would.

The biggest problem with potential FTCA and/or 1151 issues is oftren that the veteran or their survivor is not sure that a costly IMO would reveal malpractice.

I could not find an IMO doctor or even a lawyer who would help me in 1995 so I did the medical work and legal  myself, but I assure you that I would have gladly paid for an IMO then if I could have found a doctor willing to prepare one.

By 2005 however the internet had changed and I had read many BVA decision whereby Dr Criag Bash had helped vets or their survivors with IMOs that fell into his area of expertise, and a few days after he received my cover letter explaining my lay medical opinion, and referring to the medical records I enclosed, he prepared a great IMO that caused the BVA to award the claim...and that caused, after another minor battle, the RO to refund my FTCA offset.

I had to read and re read multiple times a big stack of VA records and figure out what all of the medical acronyms and tests actually revealed for my FTCA case.I had to get up to a level of cardio knowledge to deal with the VACO top cardio doctor the VA had.And I had to know all of the bnuances of FTCA case law.

Within a few hours of getting my husband's VA medical records, I  was sure they had killed him.

But I sure would have gladly paid an IMO doctor to do the medical work I had to do myself.

I liked the legal work so no gripe there.15 or 20 NY lawyers told me I would never succeed and they would not even refer me to a real malpractice lawyer.Lawyers were not allowed to advertise their specialties in those days.1995

The internet ,since, and the information it has brought to the public has made it far easier these days for veterans or their survivors to prove their claims, whether direct SC or under 1151/FTCA.

If the widow contacts a malpractice lawyer- showing them the proof of the Mayo letter and proof of the VA's failure to act, would possibly get them to represent her and maybe they would advise the best oncologist to do an IMO for the potential FTCA claim.

 

 

 

[pwrslm]

Last week we received the BBE on this case. The VA approved the SC of the CMML-1 for agent orange exposure due to the benzine it contains. The widow will get medical CHAMPVA and DIC dating to the death of her husband.

 

WE WON

 

Now, we are taking the case to lawyers to see if they will press a case under the FTCA for failure to treat/diagnose the cancer in a timely fashion.

Edited March 5, 2018 by pwrslm