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maine1963

1151 Claim filed...

Question

I filed an 1151 claim back on Nov. 28, 2017. This claim is for 2 issues arising from improper medical care and direction given by PCP. First issue is for skin disorder and second is for scarring.

I presented to the PCP in March 2017 with what I thought was a common jock itch/rash in my groin area. The PCP prescribed a steroid cream and antifungal pill. Initially my symptoms cleared up quickly. Then just prior to my 6 week follow up appointment with PCP, my skin in the groin, thighs and testical areas became extremely red and inflamed. At the follow up my PCP directed me to continue using the steroid cream and once again prescribed an antifungal medicine. Never once did I have any "moisture" or fowl smell and I questioned the doctor when she once again prescribed an antifungal med. Follow scheduled for 2 months out, directed (as I stated above) to continue the use of the steroidal cream.  Over the next 2 months I contacted the PCP via my healthy vet secure messaging and phone line, as the condition was not clearing up and the welts / redness were getting worse. She advised to continue using the cream and rescheduled my follow up to LATER date to "give cream time to work".  I went in to her office on two further (unscheduled) visits for emergency visits. I was in extreme pain. She said that the cream should be working. Well in the mean time I was having trouble breathing and controlling my heart rate. I was scheduled for a stress test, which I failed and was sent for a catheterization to see if I had any blockages. The heart issue(s) are unrelated as I have had previous blockages, but this new issue clouded and trumped my groin issue. While I was in the hospital for the catheterization the cardiologist questioned the redness and swelling in my groin area.  They told me to follow up with my primary care doctor as they were not sure what was going on, but that it was alarming. Upon release, and 1 week later, I followed up with my PCP about my groin area and heart. There were NO heart issues but when the PCP examined my groin area she said "OMG, you need to go to see a Dermatologist. I was notified a few days later that I had an appointment with a VA Dermatologist. At this appointment the Dermatologist quickly diagnosed me. He said that I did NOT have any type of fungal infection. He further stated that my PCP misdiagnosed my condition and should not have prescribed a steroid cream to be used on my groin, and certainly not for a period longer than a week. The steroid cream had thinned out my thigh, groin and testicle skin to the point where there was not much left for skin layers. I also developed tremendous stretch marks in my groin and thigh area along with cracks and areas that were now bleeding. He was cautious as to what he said in my VA medical record (notes) after the first visit. But he did contact my PCP directly (per his words at my second visit. He went further to tell me that I now have permanent and irreversible skin damage and scarring. This he did document. Bottom line, there is nothing that can be done to correct this condition that now exists. A week later I was notified that I now have a NEW PCP! I went to the patient advocate and requested that a peer review be initiated. In the mean time I also filed a disability claim (I am already at 100% P&T so there will be no additional monthly compensation) - but I wanted the 1151 to be in place in case I decided to file a FTCA Claim.

 

I do not have the money to hire an outside physician for an IMO. But, my feelings are that this is a cut and dry case of a PCP performing duties outside of her expertise. I should have been sent to Dermatology right off the bat when the first treatment failed and additional skin issues arose. Instead she continued to tell me to use the prescribed steroid cream. 

I have read that I do not have to file a SF95 tort claim, but I could simply notify the Office of Chief Counsel for the VA *"however, use of the SF 95 is not mandatory, so long as the requirements are met that there is a signature of the appropriate claimant, sufficient information to investigate the allegation, and a sum certain demand." *from the VA web page   How would I notify them without filing the SF95 form?? 

My 1151 claim, had an estimated decision date of 09JAN18, but now the ECD is 24JUN18. I can only assume that the peer review has been initiated and there was a discovery of my 1151 claim being filed.

Any thoughts as to how I should proceed? Should I simply wait to hear if the VA found fault via the Peer Review? Should I send some sort of notice to the Office of Chief Counsel as to my demands for compensation due to malpractice? Should I go ahead and file a FTCA even though I know I can not afford an IMO? I have had no luck thus far in retaining legal counsel to represent me. I do live in Maine and it is difficult to find an experienced lawyer to deal with the Federal Government.

 

Thank you all for any advice you may afford me,

Greg

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Do you have copies of your VA medical records that include this documentation :

" He went further to tell me that I now have permanent and irreversible skin damage and scarring. This he did document. Bottom line, there is nothing that can be done to correct this condition that now exists"

This is BLATANT malpractice.Iwonder what would have happened if you had not filed the 1151 and gotten a better doctor.

When VA is aware of potential 1151 and/or FTCA-that is when stuff can suddenly turn up "missing". This is why I asked if you have a copy of that documented record.

 

"Any thoughts as to how I should proceed? Should I simply wait to hear if the VA found fault via the Peer Review?"

No. Continue to support the 1151with evidence. A Peer Review they did for my case caused the Regional Counsel to call me to discuss a settlement within a few months of the VA's receipt of my FTCA case.The Peer Review confirmed  my charges,. then it disappeared, ...so did the RC, and then so did the Cardiologist who prepared it. I had to supply more evidence  to support  my lay medical opinion. And what proof do you have that they are even going to do a Peer Review?

You dont feel you could handle the fee of an IMO, but by all means search everything you can on the quack who malpracticed on you - to prove they were incompetent and unqualified to treat your condition and also make sure- and this is most important, to  research the steriod cream they   had prescribed to see what it's side affects were.

"Should I send some sort of notice to the Office of Chief Counsel as to my demands for compensation due to malpractice? Should I go ahead and file a FTCA even though I know I can not afford an IMO? I have had no luck thus far in retaining legal counsel to represent me. I do live in Maine and it is difficult to find an experienced lawyer to deal with the Federal Government."

I had no lawyer and no IMO when I filed for wrongful death of my husband.

I studied everything I could as to his autopsy and death certificate, because he dropped dead of a condition the VA had told me he didnt have--heart disease.I went over his medical records dozens of times, and did a timeline of what the VA did wrong and when they did it, and how they attempted to cover it all up.Long story -the 1151 was denied and then the OGC denied and I found out why- the 6 page autopsy, which was my main piece of critical evidence , was removed from the C file and from the entire medical records they sent to the OGC.

When I found that out, I raised hell, and everything changed.and eveything was awarded.

If you have the time to do research and to prepare an air tight 1151 claim-you dont need an IMo. But I dont suggest anyone filing FTCA to do that without a lawyer. I did, but I am not the  usual type of FTCAer, I had a limited legal background .

Also  what if this malpracticed event in the long run in some way causes you more disability than the scarring,etc? It already had an affect to your heart...hopefully a temporary effect.

 

Re the SF 95:

I am a FTCAer and 1151er and I used ,on the  SF 95 the exact  Cause of action as I did in my initial 1151  claim, and the same evidence, and I do not feel that web site  has appropiate advice. Can you provide  link to that?

Edited by Berta
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On 1/19/2018 at 12:11 PM, Berta said:

Berta, thank you. Your reply and questions were perfect...

I review my VA Medical record daily and I DO have printouts of my medical record - each time it changes with additions. I also monitor it to make sure that nothing "goes away". So, in answer to your question(s) - Yes I do have copies from start to present.

I don't have any written proof as to the peer review being scheduled or completed. I was only shown an actual email that the Veteran's Advocate had at the VAMC. It was an email from the woman who puts together the Peer Review to the Veteran's Advocate saying that it was scheduled and to let the veteran know that due to privacy act that I would not know any of the details discussed, nor would I be able to attend the peer review, that the veteran would only know if they found that there was fault on behalf of the Primary Care Doctor.

There is not any derogatory information available on the doctor who is in question. 

I did research, with extreme diligence, the causes that steroidal cream could have on ones skin if used for prolonged periods of time. I then completed my 1151 and filed it through the DAV advocate. The 1151 claim is shown online as well as my supporting documentation (via Ebenefits). The ECD is June 2018. I did also contact my Congresswoman and requested a congressional inquiry into my claim. That way the VAMC will have to update them as well and perhaps nothing with disappear or "slip through the cracks"!

Here's an update from my initial post... 

The 1151 initiated C&P medical exam at my VAMC. This exam was electronic only. The C&P doctor at my VAMC deferred the exam back to the RO saying that he wanted a physician outside of my VAMC to perform the Electronic Examination and provide their findings to the RO's requests. 

Well an out of state VAMC C&P doctor reviewed my 1151 and all of my medical records and in short stated "in all of my 25 years as a Primary Care doctor I would never have prescribed a steroid cream for more than a 1 week duration", "as a physician we are all alerted to this very fact that prolonged use of steroid topical cream will do permanent and irreversible damage - during medical school, internship as well as through numerous journals and notices", "a blatant  disregard for the Veteran is my observation".  and additional facts were noted by him as well. But you get the idea. 

Can I use this as my IMO?

How can the RO not approve my 1151?

If I am awarded my 1151 Claim, is it then that I submit the SF95 FTCA?

Or do I wait for MY VAMC to make an initial Administrative $ offer?

I am self educating myself by reading the laws regarding FTCA claims, reading online cases and where other Veterans went wrong...

But I do not understand the timeline of events (sequential) from the time the peer review is complete - to when the 1151 is approved or denied - to the time I am offered an administrative $ offer (or not) - to when I should file the FTCA. YES< I too am concerned about the long run and any other side effects down the road. 

One last question Berta... I am also going to have my wife file a consortium FTCA claim. Any thoughts?

Thank you ever so much. I am sorry for the loss of your husband. Much love goes out.

Greg

 

On 1/19/2018 at 12:11 PM, Berta said:

Also  what if this malpracticed event in the long run in some way causes you more disability than the scarring,etc? It already had an affect to your heart...hopefully a temporary effect.

 

Re the SF 95:

I am a FTCAer and 1151er and I used ,on the  SF 95 the exact  Cause of action as I did in my initial 1151  claim, and the same evidence, and I do not feel that web site  has appropiate advice. Can you provide  link to that?

 

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"Can I use this as my IMO?"

Absolutely- make sure the VA gets a copy of it (and send it with proof of mailing)

A former VA doctor gave me a brief freebee email IMO.Dr. Bash called him up and he ( the former VA doctor )put the email on his letterhead and Dr. BAsh attached that to his IMO.

It took me many months to find this neuro ,the only doctor at VA who really knew what was wrong with my husband and his DX was crossed out in the med recs. He went into private practice after all that happened.

"How can the RO not approve my 1151?"They can be very good at that- they manipulated 2 posthumous C & P exams in my case, for my initial 1151 claim.

"If I am awarded my 1151 Claim, is it then that I submit the SF95 FTCA?"

FTCA has a 2 year Statute of limits.I filed FTCA and 1151 at the same time----it regarding a 1151 my husband had pending when he died, but in those days widows had to start from day one, as I had to do on  both of his pending claims. He went posthumously from 30 % SC PTSD to 100% SC PTSD P & T , a faster  pending claim then the 1151 claim.

"Or do I wait for MY VAMC to make an initial Administrative $ offer?"

Offers- if you mean settlements-they  are only generated by Regional Counsel or district counsel ( or the OGC) due to a successful FTCA case.

A successful 1151 brings a rating and 1151 compensation on the level of disability you have incurred due to their medical errors.

"I am self educating myself by reading the laws regarding FTCA claims, reading online cases and where other Veterans went wrong..."

That is a good idea. when I filed my FTCA no internet as we know it now.I could not find any lawyer to help me or even find any IMO doctor.Al I had was evidence....that was all I needed but I do not recommend doing these types of claims without IMO/IMEs these days.

Your doctor's statement is Very strong.

 

"But I do not understand the timeline of events (sequential) from the time the peer review is complete - to when the 1151 is approved or denied - to the time I am offered an administrative $ offer (or not) - to when I should file the FTCA. YES< I too am concerned about the long run and any other side effects down the road."

The VA never did a Peer review on my 1151 claim- they only did that for my FTCA case. 

And 1151 claim only involves a rating and 1151 comp for the extent of the malpractice 

I think most FTCA cases should be filed Yesterday! Due to the 2 year SOL.

The RO could no longer deny my 1151 DIC claim when I sent them copy of the the settlement I had made with the USA. They tried but I think I called OGC to call them and that was finally resolved.

 

 

"One last question Berta... I am also going to have my wife file a consortium FTCA claim. Any thoughts?"

I think you should contact a lawyer for the FTCA case- but even if you dont, any settlement might include consortium loss amount. Mine did. But that was because my husband was dead and could not longer 'consort'.

The SF 95 has to be prepared carefully-I was BSing with the OGC lawyer years after my case (he seemed upset  to hear from me again because he said I was too tough to deal with- he was right) but in our conversation  he mentioned the biggest error he sees in SF 95s that cause an immediate denial. That error and being out of the SOL or having claimed negligence against a non VA employee(such as an intern or someone)is described in this forum somewhere.

Also dont forget to read about the FTCA- 1151 offset factor.

I think you got as Peer Review because your doctor's statement was so strong. You probably wont be able to get a copy of   the review  until the claim is resolved.

I used the  Peer Review I mentioned (and VA said it had Never existed)when I found it many years later at the bottom of my C file. It helped with my AO IHD claim rating and my DMII claim...

 

Edited by Berta
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