forms Medical Malpractice

[Lemuel]

I HAVE A QUESTION!

What is the required form to file a claim under 38 CFR 3.361 "Benefits under 38 U.S.C. 1151(a) for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program." required by 3.154?

Edited October 9, 2017 by Lemuel
Focus

[Berta]

I have never used a form for my 1151 claims.

As StatesideLegal says here:

http://statesidelegal.org/about-us

there is no specific 1151 form but some VSOs or vet reps might have a specific template they use.

I  always just wrote my VARO a letter stating it was a claim under auspices of 38 USC Section 1151, and then laid out the evidence, which I enclosed, and I got a proof of mailing receipt.

This is a template of my most recent 1151 claim:

"Department of Veterans Affairs                       September 20,2012

                                                           

Regional Office

130 South Elmwood Avenue

Suite 601

Buffalo, N. Y. 14202 2478                                 XC xx xxx xxx 

 

 

To whom it may concern:

 

            This is a claim filed under auspices of Section 1151, 38 USC.

 

            I request a proper rating and proper retroactive payment regarding my deceased husband's hypertensive disease, malpracticed on during his lifetime by the VA health care system. My husband is Rodney F. Simmons, deceased, date of death-October 14, 1994.

 

            The most recent VA actions regarding his death would be the Nehmer Philadelphia VARO award letter , dated January 17,2012, regarding his AO IHD,in my C file.

 

            Also the CUE claim I had pending at your VARO since 2004 was awarded by the Philadelphia VARO this past January.

 

            I have enclosed as evidence, a VA document from Dr. XXXXXXXX XXXXX, as requested by the Office of General Counsel ,dated July 24,1997 ,which includes  the following statements :

 

“As noted in his history review above ,his BP was NOT adequately treated,and this is extensively documented.”

 

“Yes, better antihypertensive treatment should have been initiated,given the evidence of both old CVA and old MI.”

 

“It is my professional opinion that it is likelier than not that this dose of pseudoephedrine

would raise his poorly controlled  BP, and did contribute to his death.”

 

“and concentric hypertrophy (consistent with inadequately treated hypertension).”

 

            I remind VA that my DIC application, to include accrued, was filed within one year after the veteran's death.

 

            Regarding the EED for this claim, I refer you to the enclosed documents and the veterans' VA  employment physical of June 1988 and the medical records subsequent to and including the heart attack Rod had on August 13, 1988,misdiagnosed by VA as a sinus infection. That specific 1151/FTCA issue (the cardiac event of 1988 etc) has been proven and resolved by the VA. And I refer you to all VA medical records and documents generated after August,1988 as well.

 

                                                      -2-

 

            I have enclosed copies of the VA's 1997 posthumous rating sheet showing the HBP as NSC and the rating given.

 

            I refer VA to 21-1MR Part IV, Subpart B,Chapter 3,Section D ,et al, for further guidance on how these types of Section 1151 claims are to be adjudicated.                                                                                      

                                                                                                 Respectfully, 

                                                                                             Berta M. Simmons

                                                                        Surviving Spouse of Rodney F Simmons

 

                                                                                                  XC XX XXX XXX 

                                                                                              (contact info redacted)

(I gave them my email and phone number, always good to put into 1151 claims)

                                                          

 

Enclosed:

Exhibit A-1 and A-2  OGC June 6^th 1997  request to VACO Director Medical Services   2 pages

 

Exhibit B-1 and B-2 Response from Dr. XXXXXX XXXXXX VACO Medical Services July 24,1997 2 pages

 

Exhibit C-1 and C-2  Buffalo VARO rating sheet dated July 9, 1997 2 pages

 

Enclosures total 6 pages."

------------------------------------------------------------------------------------------------------

 They denied it at first, I filled another CUE on them within days, via email to their director and via complaint at the IRIS system, and the award was shortly thereafter, in the mail.(CUE under 38 CFR 4.6)-they ignored my medical evidence from VACO)

 But as you can tell, this all grew out of the successful FTCA case I had.

I was only  able to get the above report and medical question the OGC asked, after the settlement had been paid.

In most 1151 cases, an IMO/IME is needed to strongly confirm malpractice occurred, with a full medical rationale based on all available medical evidence, and a strong statement that the VA did not provide proper and timely  diagnosis or therapy, treatment etc, consistent with that  of the "standard and usual " medical community-meaning non VA doctors, and that those medical errors caused  the veteran's additional disabilty of   -------- . (or caused and/or contributed to  the veteran's death.)This was also my same cause of action on my SF 95.....as failure to diagnose and treat-in spite of overwheming evidence in the veteran's medical records.

 

 

 

 

 

 

           

 

 

 

 

Edited October 9, 2017 by Berta

[Lemuel]

Thanks, Berta.  That will be the route I take in the absence of finding a specific form.  Seems they have one for everything.  I'll use the old 21-4138 as a base so that it is on a form that is often forwarded by the Evidence Center and since 3.154 isn't specific as to which form that should do.