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SF 95 first step in FTCA


Berta

Question

In light of the Fayetteville pathologist malpractice snafu, Jerrel Cook ( our radio show producer) and I discussed whether any affected veteran should file an SF 95 right away-

I have been emailing some vet lawyers to get their take on that- this Fayetteville situation is worse than any past similar VA problems...except maybe for the Phoenix crap-

  The SF 95  must be prepared properly. This article gives some info on that :

https://community.hadit.com/topic/2337-filing-a-tort-claim-1151-claim/

I studied all FTCA law before I filed mine-late December 1995-with some of my medical evidence attached to it .The Regional Counsel (now called District Counsels)called me up in May 1996 to begin negotiations. He had already obtained a Peer Review that supported my charges.Then much went wrong- that's OK -it was resolved anyhow.

It is best to have a lawyer to fill out the SF95 but you have the right to do it yourself.

 

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20 minutes ago, Solo said:

The lawsuits against the United States and Mark Wisner are all FTCA. https://scholar.google.com/scholar_case?case=9016926488166260840&q=ftca+veteran&hl=en&scisbd=2&as_sdt=40006

You got a settlement during the administrative process.  You don't know what come next. Everyone must exhaust their administrative remedy before they can file a FTCA lawsuit in the US District Court.

I filed my FTCA lawsuit pro se in the US District Court.  The US Attorney's Office have 3 weeks left to answer my complaint. The US Attorney's Office is more experienced at litigating under FTCA than the VA General Counsel, and VA Chief Counsel. The VA General Counsel and VA Chief Counsel only handle the administrative process. The US Attorney's Office handles your FTCA complaint in the US District Court.

The VA's defense will be that the pathologist was not acting within the scope of his employment. His intoxication isn't in furtherance of the employer business. The intoxication was for his personal gratification. The VA  and the US Attorney's Office will also use the State's statute of repose as a defense.

There is no tolling for the State statute of repose. The State statute of repose for Arkansas is 4 years from when they were diagnosed. It is not from the time they found out about it. 

There is also the State statute of limitation. The State statute of limitation is 2 years for Medical Malpractice in Arkansas.  

 

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It took 10 years for this one pathologist to make all these diagnostic. The VA doesn't have the resources to get this done fast. The State statute of repose will run out before it will get done for most people. The viable cases need to get an expert witness to review their medical records.  It will probably cost them around $5K. Unless you can find an attorney who will pay it for you, you will have to get the medical expert witness at your own cost.

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7 veterans have enough already from results of the separate new pathology reviews to file FTCA/ and/or 1151 depending on how they much they were damaged. 

 

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They will still need to prove that the pathologist was negligent for both FTCA and 1151. Being diagnosed or misdiagnosed isn't proof of negligent. They will need an medical expert witness. 

Read last page 25.

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.uscourts.cavc.gov/documents/Trafter10-3605.pdf&ved=2ahUKEwj5pLu5gf_bAhUtq1kKHWcTBtsQFjAEegQIAxAB&usg=AOvVaw05RL2SstTYUoV87MJYlIYT

9 misdiagnosis out of 900 is a 99% accuracy rate. You would have to prove the 1% was due to negligent instead of error.l

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You are very knowledgable in this area Solo- but I disagree with some of your points-

I do not believe many of these veterans will need an independent medical opinion at all, if the 30  pathologists 

find that documented medical malpractice occured.( and if the VA lets them know of those findings)

However , I imagine some vets who got that letter and to whom VA might say there were no negligence findings in their case, after this review , might well consider getting a IMO/IME just to be sure.

Would the VA lie about anything to do with their liability here?

Of course they will if they think they can.

I not only proved the local VAMC malpracticed on my husband for a 6 year period, I also proved an additional VAMC he was hospialtized in , tried to cover up the other VA's malpractice. 

But I think you mentioned something about VA policy as part of your issue under FTCA- maybe I am wrong-

I used a VA medical policy in the form of a Directive in my FTCA issue- as evidence.

I sought a motive for the malpractice ( not needed at all, but I was shocked and stunned by what VA did to my husband) so I found a motive- it took me many hours , and many days in the Corning NY Law Library, to find anything  to help. With only minutes left to use their copy machine, right before a holiday weekend, I found in the last stack of files :

M21-1 Physician Guidelines for treating VA employees   1988

Bingo - not maybe a real 'motive' but the reason the malpractice began.

 

 

 

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  • HadIt.com Elder

Ms berta

not meaning to get off the subject in this post...but did you find out if Stretch Was the Veteran in question here the one that died ? or was his death the cause of this malpractice Dr not diagnosis Stretch in time for treatment?

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