Is this FTCA worthy?

[Flyby]

Is this FTCA worthy?

 

Thought I was posting in the correct Forum with my original post...know this is in Berta's wheelhouse: I am receiving 100% TDIU (90% SC w/remaining based on IU) since 2014.

Saw an APRN from 2010-2016. In that time they (APRN/MD) prescribed Lorazepam at first 2mgs (1mg twice a day). Had already fought VA solo for a decade in getting the diagnosis for SC PTSD and GERD back-dated and had tried a laundry list of prescribed meds but had had no luck. I was asking the APRN repeatedly about dependence on the Lorazepam, side-effects, etc...all documented. Was even told in a C&P by a PhD that the drug is "not addictive." I was told repeatedly the importance of "medication compliance" by the APRN.

Despite my life spiraling, all documented, the APRN kept prescribing. I even asked the dosage to be reduced. I never had a face-to-face with the MD as required by APRN/MD protocol in all that time. I had gained thirty pounds, was drinking heavily, was forced to sell a self-started business due to IU, and deaths of significant others, etc...all things that should have likely prompted a sit-down with the prescribing MD. 

Fastforward to just-prior-to Christmas 2016 I received a letter stating I was being reassigned to a new MD. Within seconds of our meeting the MD had already stated he had not read my chart and then proceeds to just berate me stating "I was an addict...look at you." I sit forward in a chair to hear. He would have known that if he would have simply read my chart. I held my tongue and just let him spew. He then states if I continue taking the drug I will "end up in a nursing home." In the same sentence, while essentially yelling at me, he says if you stop taking it you will "drop dead from a seizure." To say I was stunned would be an understatement. I said nothing.

I had been told for the past six years that this medication was a "wonderdrug" for me and I was told by the APRN to remain "compliant" in taking the med. I am not an addict by the way. I was someone that had taken a drug EXACTLY as prescribed for over six years while being assured and reassured by an APRN that it was nothing but beneficial for me. All documented. I was never told this drug was life-threatening. Again, I never abused Lorazepam only taking it as prescribed.

I had heard enough from this MD, also the Chief-of-Staff of the clinic; I asked him "if this medication is so dangerous then why have I been prescribed it for so long?" His response still resonates with me. I think at that moment he realized HE was the doctor signing-off on the APRN requests for that length of time...but he didn't stop talking. I knew that he was the MD before we ever met that day. His name was on every bottle filled. He admitted he "likely was the doctor signing-off" and "he had so many patients he just signed-off on the APRN requests." What?! His facial expression was priceless when the reality of what he was telling me hit him; he immediately began to throw the NP/APRN under the bus saying "she had a history of over-prescribing." He was incredibly rude, brazen, and unapologetic in his admisson. He even put in my progress notes from that day that my taking a half of a half of a 1mg Lorazepam as needed was my "attempt to ween myself." This was untrue at the time and I feel was a vain attempt to cover himself somehow.

I reported everything that was said to the patient advocate...her response..."you caught him." I have since discontinued the med not without horrible withdrawls and am now having uncontrollable muscle movements with my right hand curling inward with fingers locking rigidly, memory loss and gait/balance issues. I am obviously "unemployable" as well. The MDs attempt to taper me from the medication was questionable as well...he told me to "only take it if I need it" instead of a proper taper. The patient advocate and her supervisor have mentioned the Form 95 and my Rights. 

During the time I was on the medication I was in Chapter 31/35 Voc Rehab. I experienced just about every form of employment discrimination there is as a first-year teacher.That's a nightmare by itself. Just to put this out there...EEOC is a joke. I disclosed my hearing impairment prior to being hired on a pre-employment checklist, which is an illegal inquiry by the way. When I had a simple disagreement with an Assistant Principal about a collateral duty he placed me outside from Nov-Feb next to a running industrial-sized generator. When I requested to be moved I was ignored. EEOC opined not only was this normal but even allowed the opposing attorney to claim I had "never disclosed nor was disabled" despite having written proof. EEOC even allowed the opposing and one of its own directors to question my military service. I was forced to resign. I hope that hits home for folks on this forum. If EEOC can scoff at my military service and a VA SC disability then what does that say about their REAL view of ADA/ADAAA, veterans, and SC disabilities? I can't get a teaching interview due to retaliation from my former employer; EEOC is aware but refuses to even open mail from me. Again, EEOC apparently does not care about some veterans. I filed in Federal Court pro se when no attorney had the brass to represent me. 

Instead of VA Voc Rehab advocating for me, which they are required to do by statute, and helping me keep my job for a very specific disability disclosure prior to being hired as a teacher, they (VA) simply deemed me "unemployable." All the while they were prescribing a med that was obviously making my SC disability much worse--obviously hindsight helps here. The two MDs I have seen since 2016 both agree that not only was the dosage excessive, too prolonged, but most importantly that given my pre-existing SC of PTSD the expectation of very specific outcomes should have been expected. See Laskowski v US (Dondershine opinion).

According to my own research since the FDA has no clinical studies past several months for Lorazepam much less six plus years...further FDA states very clearly that in certain patients, PTSD symptoms could/will be compounded.

I have spoken with several attorneys that claim to handle FTCA cases. So far the majority only are interested in "catastrophic injury" cases. Considering I am faced with possible lifelong issues related to this med and a complete lack of accountability between APRN/MD is this FTCA material? I have read the Laskowski v US case which seems similar despite me not being a criminal. I do have a face-to-face appointment with an attorney in about a week. Please advise.

Edited March 21, 2018 by Flyby
Removed hyperlink

[Berta]

This malpractice lawyer has a good explanation of the FTCA  Statute of Limits:

Joe Callahan, a Virginia attorney and retired naval officer who represents injured veterans and military dependants in medical malpractice claims against the Veterans’ Administration, provided us with the following information on how the statute of limitations works in VA cases, “The statute of limitations under the Federal Tort Claims Act (FTCA) requires that the administrative claim must be received by the Department of Veterans Affairs no later than two years following the date of the injury, or in some cases, two years after a ‘reasonable person’ should have become aware of the injury. That ‘reasonable person’ standard is a very strict one.”

https://law.freeadvice.com/malpractice_law/hospital_malpractice/va-medical-malpractice-statutes-of-limitation.htm

 

[Flyby]

Very good info Berta, thanks again. Reached out again via email contact to D. Brier (attorney for Laskowski) and his firm. Trying to get in contact with Dr. Dondershine and Dr. Goldstein, the IMO from that case. Have reached out to Dr. Bash as well. Still no responses. 

If I choose to go 1151 route on this, what can I expect in general? Is the outcome similar to FTCA? Think I read somewhere that you felt they were similar.  Haven't ruled out FTCA on my own...just trying to weigh my options.

[Berta]

The evidence for both 1151/and FTCA should be similar-if filing for both.

My original 1151 claim and the SF95 held the same cause of action and the same evidence.

However my FTCA offset from my settlement (wrongful death) was offset, meaning withheld from the DIC award I got under Section 1151....until many, many years later they had to begin sending me the DIC money...because the offset had been recovered.

This case shows what I mean as to offset:

https://www.va.gov/vetapp17/files9/1756154.txt

However if a claimant can prove that any 1151 or FTCA issue regarding what might become a direct SC comp award, the VA would have to refund the offset. 

My FTCA case was easier to get to settlement than my 1151 claim. They (my RO)denied that claim ( 1151)even after they got a copy of the OGC settlement papers.

I called the OGC attorney and said the USA  owed me more money.( It was the USA you actually settle with)

He was horrified to hear from me again and asked what I meant and I told him what the RO did- he made a phone call to the Buffalo VARO and days later the DIC claim was awarded...awarded but ,as I explained, not paid until my settlement was recouped.

I negotiated the offset myself with OGC attorney and it wasn't too high.Just high 5 figure offset  This is why anyone dealing with a FTCA case by themselves has to know VA case law in and out and not be intimidated by the VA lawyers. Sometimes they offset the entire amount of the settlement against any future 1151 payments.

I bet many of those large offsets could have been avoided if they had a good lawyer.

The pros and cons-

FTCA is a lump sum check.

Section 1151 is a monthy comp award.

I advised a local vet friend of mine he had a basis for filing both ways.

He wanted the monthly 1151 check because he was afraid he might  spend a large settlement very fast.

I knew him well and agreed. The VA has paid him 100% P & T under 1151 for over 20 years so far.

But I filed both ways. Many years later I subsequenty filed another claim regarding my husband's death.

I was able to prove he had a direct SC death due to AO DMII contributing. I also have another DIC award for direct AO IHD causing his death.

After they awarded the DMII claim, I was refunded the offset from the FTCA case.

That too involved me calling the OGC in Washington, getting the lawyer who settled with me, and he got some big OGC honcho to "order" the VA to refund the FTCA offset.They had refused to at first, but sent me the refund.

There is much to your situation- I can only guess that your potential malpracticed issues would have nothing to do with your established 100% SC rating now-

they could however possibly get you into a 100% plus 60% or 100% with housebound status-under Special Monthy compensation- searchable here...if you choose the 1151 route.

I also suggest ,if you email any  malpractice lawyers with expertise involving VA, ,tell them right away of the documented evidence you have,in your VA records,  and what documented disabilties the malpractice caused.

These two things are the Only things that award any type of malpractice claim-

Malpractice that is documented in the VA medical files---

And documented ( and diagnosed) additional disability (ies) directly due to the malpractice that are at a ratable level.

Malpractice always has a paper trail---but a lay person cannot really interpret most medical records -

and that is when they need an IMO/IME doctor.

I can use a personal example-as to the SMC I mentioned:

My husband had 100% P & T for PTSD ( he died at 30% , this was an accrued posthumous award)

He also had a 1151 claim pending that I also had to assume as the claimant.

VA awarded under 1151 for a  100% P & T stroke ,the VA caused, also undiagnosed untreated heart disease, and improperly medicated HBP .

That meant he was eligible for SMC S which they awarded.The award considered both the 100% plus 60 and the 100% HB status, but only paid under one theory , although the award states he was eligible under both theories.

There really isnt enough here to guess as to what is best for you-or even how disabling any VA malpractice has rendered you to be.

I suggest whatever way you go, or even go both ways, is to write a timeline that refers to the documentation in your VA med recs, that shows they did not follow established medical procedures as found "in the standard and usual medical community", This was my cause of action on my SF 95 and also my 1151 claim.

And lay out with the timeline and refer to specific medical records, that caused you to have whatever ratable and documented disabiities you did not have prior to the malpractice.

Lay out a full medical rationale for each charge .

This is what I feel you will need an IMO/IME for.The friend I mentioned didnt need an IMO.He won at the RO level.

I didnt have a lawyer or any IMO either for my FTCA case.You have the right to file under FTCA yourself.

Some malpractice cases are so clear cut , that the claimant can prove their issues themselves.

But if you have no medical background it might be very difficult to do.

 

 

 

 

 

[Flyby]

Excellent information Berta, thank you very much!