FTCA VA Tort and Federal Lawsuit Appeal

[Dr Ed]

Can a VA Tort Attorney legally restrict evidence (in my case my VAMC medical/dental records) in a FTCA VA Tort Claim for malpractice and negligence if the evidence is necessary to prove the allegations?

Edited August 30, 2018 by Dr Ed
needed to state type of evidence

[broncovet]

Im not sure I understand your question, but it sounds like that would be a good qustion to ask your attorney.  

Specifically what do you mean by "restrict evidence"?  Restrict it to what?  Restrict it to the applicable case?  

Do you mean restrict it to just use in that case?  

[Dr Ed]

1 hour ago, broncovet said:

Im not sure I understand your question, but it sounds like that would be a good qustion to ask your attorney.  

Specifically what do you mean by "restrict evidence"?  Restrict it to what?  Restrict it to the applicable case?  

Do you mean restrict it to just use in that case?  

Restrict the evidence by stating that anything that predates the 2 year statute are time barred. So I became aware of the malpractice and negligence when I had oral surgery October 2015 by remembering that on September 2014 the VAMC Dentist stated verbally I had no periodontal issues, and it wasn't until afterward in mid 2016 when I received copies of my records that the VAMC Dentist in question entered his false diagnosis in my record besides what he stated verbally. So the VA Tort Attorney is stating that any information predating the 2 year statute is time barred. Aug 09, 2015 to Aug. 09, 2017 (Tort submittal date) is what they are saying is the 2 year statute timeframe. I believe Article I Rule 103 allows all evidence to prove your case including dental/medical records. So the VA threw out my case by time barring the evidence, even though I filed my Tort within the required 2 year statute, they say this also applies to the evidence. I have a hard time believing that. I am my own pro se Attorney, because my case isn't worth enough money and I'm alive. Yes I do need an Attorney in the worst way so justice can happen.

Edited August 30, 2018 by Dr Ed
clarify one statement

[broncovet]

You posted:

Quote

So the VA Tort Attorney is stating that any information predating the 2 year statute is time barred.

This is a legal question Im not qualified to answer, but your attorney apparently answered it (unfavorably), but you think differently.  

I suppose the only way to do this is to research case law...this is often what I have to do when their is a difference of opinion.  

Did you question your old attorney as to why he said this?  It sounds like you have uncovered your legal issue, and Berta may be able to answer it for you.  Hopefully she will chime back in.  

It could be the statue of limitations bars evidence beyond this 2 years, but I have no idea.  

I see it that you have 3 choices:

1.  Persist and try and find another attorney.  Sometimes you have to try a dozen or more.  

2.  Persue the claim yourself, which means to have a legit shot at winning, you will need to become and acquire the skills of a law student.  Perhaps someone from one of the law colleges will assist you.  A lot of it is having access to search engines and case law, and being skilled in reading and interpreting other cases.    Im pretty sure Yale law school has a pro bono section where they help Vets.  

3.  Give up.  This is not recommended if you sincerely beleive in the outcome.  

[Berta]

I am a Pro Se attorney too.

You have 2 more choices-

1.There is no Statute of Limits to a Section 1151 claim:

Section 1151 , 38 USC and there is plenty of info here on that-others will help you with it.

There must be a condition, solely due to proven VA  malpractice, ratable at least at 10%.

 

2. The other choice is due to the possibility that the OGC committed a CUE-meaning they made a legal error in determining that you were beyond the Statute of Limits.

If you can scan at attach here their letter as to the SOL, others will be able to determine CUE, if I am not here-

Cover your name, address, etc, on the letter. I dont think OGC puts C file# s on correspondence, but cover that too if they did..I need to see the date of the letter.

I  was a pro se claimant for the wrongful death of my husband, and I won FTCA and also 1151 case. SOL was never an issue but I have no idea how much time has passed, we need to see the letter regarding the SOL they sent to you.

They (OGC)  could certainly be right-but I know how difficult it can be for a pro se to deal with them at first.1151s have no SOL.

I won a 1151 on my husbands malpracticed HBP,   in 2015, 21 years after my FTCA SOL and have 3 pendig  CUEs ( so far on his 1151 100% P & T  CVA-their audit and payment to me was short by tens of thousands.

To answer this:

Can a VA Tort Attorney legally restrict evidence (in my case my VAMC medical/dental records) in a FTCA VA Tort Claim for malpractice and negligence if the evidence is necessary to prove the allegations?

Absolutely not! If it is probative to the case.

However your VARO might do what they did to me and never send the OGC all of the evidence.

When I initially got some sort of BS denial letter from OGC I raised hell with them, asking why my most probative evidence ( my husband's autopsy) was missing from their medical rhetoric- they did not have the autopsy at all. I sent it or faxed it to them and then the OGC called me to discuss a settlement.I got what I wanted.

Can you scan and attach any letter OGC sent to you regarding “restrictions?” I have never heard of that before- BUT if the SOL has legally passed, it is moot anyhow.

Much of my evidence of VA medical malpractice was dated ,in VA medical records ,6 years prior to the day I filed the SF 95. My SOL was the date of my husband's death. I dont know what they could possibly mean as to "restrictions" of evidence....unless they found it unprobative.????

After I won the FTCA/1151 claims, 5 year later I discovered additional malpractice but filed it for direct service connection, AO DMII, (never diagnosed or treated by VA) and one of my husband's VA dental records held proof of the DMII , it was part of my evidence.

His dental situation was very good but the dentist noted something on the inside of his mouth ,that I proved was one of the first of many symptoms he had for the next 6 years ,all manifestations he had of undiagnosed and untreated diabetes, which led to his death. An odd prescribed mouthwash by VA (Swish and Swallow)which I 

I proved ,was VA's way of treating this symptom of diabetes, without properly diagnosing and treating it.

Others will help you with the 1151 claim - and if I catch the scan's of the OGC stuff I can better determine if they were right or if they were wrong.

 

But the 1151 claim might be your best bet if OGC is right.

All of the regs for that and discusses are here at hadit under a search.

 

 

 

 

 

 

 

 

Edited September 1, 2018 by Berta

[broncovet]

As usual, Berta has given a good answer.  Im not sure how to "convert" an FTCA to an 1151 claim, but IM sure you do need documentation, that is, likely a private medical opinion (IMO) that states that (a doctor at VA) made a mistake in your diagnosis or treatment, that caused harm.   Using a lay opinion to refute a medical opinion would be like trying to teach driving school if you did not know how to drive.   

I doubt that you could show this was a medical error without an opinion from another doctor.  Generally, this means you will have to cough up money for an IMO up front, probably.  

Or, post it like Berta says, and maybe we can find a CUE.  

[GeekySquid]

On 8/30/2018 at 10:57 AM, Dr Ed said:

Can a VA Tort Attorney legally restrict evidence (in my case my VAMC medical/dental records) in a FTCA VA Tort Claim for malpractice and negligence if the evidence is necessary to prove the allegations?

Dr. Ed

I am not a lawyer but I suggest you read United States v. Wong, 135 S. Ct. 1625 (2015). you can find a really good synopsis and discussion at this link from the Cumberland Law Review  https://cumberlandlawreview.com/2016/02/06/barred-forever-determining-whether-ftca-time-limitations-permit-equitable-tolling/

In Wong SCOTUS ruled that:

Congress did not intend to make the FTCA time bars jurisdictional because the statute lacked clear jurisdictional language. The Court explained that the language of the FTCA pertains only to timeliness, rather than to a court’s power to hear the claim.The Court noted that the language “forever barred” is merely “run-of-the-mill” statute of limitations rhetoric establishing a claimant’s filing obligations. Therefore, because the statute lacked clear Congressional intent for the statutory time limits to be jurisdictional, the Court held that the FTCA time bars should be presumed to be nonjurisdictional. Because nonjurisdictional time bars do not restrict the court’s authority to hear the claim, the Court held that these time limitations can be equitably tolled. However, whether these time bars in suits against the federal government are always subject to equitable tolling is a question that has plagued the Court throughout the years.

 

The next thing you need to do is shop around for an FTCA attorney that knows Wong without you telling you about it. Preferably one that has successfully worked Veterans FTCA cases before yours.

In short the Court erred in ruling that you were time barred from bringing the suit on the precedent setting determination that FTCA cases were never meant to be jurisdictional in nature. The court should have ruled that equitable tolling was in play assuming no other factors come into it.

You will have to move fast and will probably want an en banc hearing of the court on your appeal of their ruling. You should be prepared to head to SCOTUS too.

The good news for you is that in reality when you filed with the court the clock stopped ( the case was tolled), but then it restarted with their ruling. It will stop again when you appeal. Make sure you do it quick.

 

Just as a further note, time barring overrides any claim of evidence proving the case no matter how unfair that sounds, it is the reality. The reasoning is they don't want to be swamped with cases 10, 20, 50, or even a 100 years old being customarily heard. Some rare ones can and should be heard, but mostly they shouldn't. Two years is too short, but that is the law.