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

[Berta]

This veteran did not file with the "court".

He might still be within the FTCA 6 months regulations.

I agree he has to act fast but I went through some BS within the first 6 months after I filed my SF95-

SOL is the first thing General Counsel questions wityh receipt of a SF95 but they had no problem with my SOL.

I rebutted their initial denial with the prime facie evidence  that my RO had deliberately removed from my files prior to sending them to the General Counsel.

I called the GC and VACO and found out what was missing....the best evidence I had.My husband's 6 page autopsy.

I sent it or faxed it to them and Gen Counsel called me up to settle with me as soon as their top cardio doctor at VACO opined on it.

Death by VA- my husband was only 47, a Vietnam combat veteran.

 

 

[GeekySquid]

9 minutes ago, Berta said:

This veteran did not file with the "court".

He might still be within the FTCA 6 months regulations.

I agree he has to act fast but I went through some BS within the first 6 months after I filed my SF95-

SOL is the first thing General Counsel questions wityh receipt of a SF95 but they had no problem with my SOL.

I rebutted their initial denial with the prime facie evidence  that my RO had deliberately removed from my files prior to sending them to the General Counsel.

I called the GC and VACO and found out what was missing....the best evidence I had.My husband's 6 page autopsy.

I sent it or faxed it to them and Gen Counsel called me up to settle with me as soon as their top cardio doctor at VACO opined on it.

Death by VA- my husband was only 47, a Vietnam combat veteran.

 

 

You are correct I misspoke the Regional VA Attorney is the first step and the six months does apply to that situation so he might need to hurry.

[Berta]

That is how I understand this.

This is the explanation , also  within FTCA case law and regulations,  I relied on to rebutt ,immediately, an initial denial within 6 months by the OGC:

“FEDERAL COURT CLAIM AGAINST THE VA in short, from the time the injury and its cause should have been discovered by a reasonable person. This can often be a tricky factual inquiry. After the claimant has filed an administrative claim with the VA, the claimant must wait at least six months for a response from the VA. If in the six month period, the VA denies the claim, does not respond to the administrative filing, or offers an unsatisfactory settlement, then the claimant can file an FTCA claim for medical malpractice within 6 months from the actual or constructive denial by the VA. Therefore, in essence, these are two separate filing requirements and both must be met within two years from when the claim first accrued. “

https://www.tullylegal.com/wp-content/uploads/Guide_to_Suing_the_Department_of_Veterans_Affairs.pdf

 

 

[GeekySquid]

12 minutes ago, Berta said:

Therefore, in essence, these are two separate filing requirements and both must be met within two years from when the claim first accrued. “

That is why the Wong ruling from SCOTUS is essential for the OP to learn and get a lawyer who knows about it / has experience winning FTCA claims.

The VA Attorneys denial as laid out by OP can only reside on the idea that equitable tolling does not apply. Wong says for FTCA cases equitable tolling is to be considered as FTCA is not jurisdictional.

It does not mean he will automatically win, it means he has to pursue it and do so quickly . That second set of time limits makes it a priority for him to get it done ASAP.

The government only lets itself be sued so often and in a vary narrow set of circumstances and FTCA is one of those times. That the VA attorney is doing this based on what amounts to a quibble is, in my opinion, disgusting and an insult added on top of injury committed by the VA itself.

I wish him well and I hope he finds the right lawyer with the chops to push this through and win.