FTCA

[ericledusmc]

Local V.A. failed to diagnose my Graves' Disease for several years even though I clearly had documented symptoms and blood work that showed thyroid dysfunction.  They blamed the symptoms on other things, and just totally ignored the blood work.  Graves' Disease is not that bad of a disease if detected and treated, but if left untreated it does all kinds of damage to your entire body.  Mine was left untreated for so long that it created what is known as a  thyroid storm (very deadly) and heart failure.  V.A. sent me home the day I was having the thyroid storm and heart failure. Told me I was just having panic attack.  Local E.R. (civilian) saved my life a couple hours later.  Ended up having my thyroid removed, seizures, heart damage, and other disabilities due to this.  After I found out the V.A.'s rules about disclosure of adverse events,  I requested they do one.  They concluded that they had done nothing wrong????  I then filed a Tort complaint 6 months ago.  It was denied by regional council a few days ago???  Also file an 1151 claim with RO benefits office.  Not sure if they were supposed to, but local state V.A. office gave me a copy of the V.A.'s report for 1151 claim.  It clearly states that the disability was foreseeable, Dr. deviated from standard of care, and added disabilities are a direct result of failure of V.A to diagnose the disease in a timely manner. Can not find many lawyers that handle Tort claims around here, but the ones I have called have all said they do not have time for claims against the V.A. unless the veteran was killed or wrong limb removed. WOW!!!!  Anyone know a good TORT lawyer that can handle a claim in the Mobile, Al. area?  I not only was tortured for several years, but I will now have to deal with these disabilities for the rest of my life, and have over $130,000.00 in actual debt as a direct result of this.

[Berta]

If you cannot obtain an experienced  malpractice lawyer ( the ones who deal with VA malpractice are on the Net)-

you can fight the FTCA yourself if your evidence is impeccable.

You need to prove the VA caused you harm- VA malpractice has a paper trail in the medical records---

And you need to prove that you have additional ratable disabilities solely due to the VA malpractice.

But finding that paper trail almost always requires a strong IMO/ IME ( independent medical exam) from a real doctor-a non VA doctor who has expertise in the field of your disability.

I got some BS from the VA OGC, basically like you got  when I first filed the SF 95, the BS was worse when the RO, with receipt of my settlement, still denied my DIC claim.I called the OGC and told them the settlement was wrong and they owed me more money-- that caused them to call my RO immediatelty due to the DIC denial and the  1151 DIC award was in the mail.

The OGC BS I got was because the VARO sent them all of the files and medical records except my prime piece of evidence - my husband's autopsy-when I found out the OGC didnt have it, I faxed it to them and within days they called me to negotiate a settlement.

"V.A.'s rules about disclosure of adverse events"-I went through that BS too-

The pharmacy had made a medical error a few days before my husband died- the VACO review said this did not seem to impact impact on his death- but they  concurred with my lay medical opinion and evidence on all of the other charges-

the lisinopril they sent him was a dose he should have been on...They almost killed a vet in my locale, whose name was on the bottle, and he had begged VA for 3 weeks to get his HBP meds- and they kept saying he did get him. They were sent here.

VA did an incident report on me- not on this situation. I raised Hell and they immediately contacted the other vet and said his HBP meds were ready.

You need to see if your VA doctors are actually employed by the VA. I posted a link to that here somewhere-

The many contracting doctors these days do not fall under 1151 or FTCA.

You dont have much time- you need to get a strong IMO/IME-I always suggest Dr Bash- he is not cheap but he is very thorough- his contact info is here under a search- he is a Neuro-radiologist but he opined on an additional  malpractice claim I had years ago and I won it.

Maybe others would know of someone else to contact for an IMO/IME.

If you search the BVA we site you might find a similar 1151  case, and that case might name the doctor who did the IMO/IME.

If you have a strong IMO/IME I hardly think a lawyer would turn you down, if the medical recordsreveal that the additional disdabilities you have are solely due to VA malpractice.

Can you scan and attach here this letter:

" It clearly states that the disability was foreseeable, Dr. deviated from standard of care, and added disabilities are a direct result of failure of V.A to diagnose the disease in a timely manner." That says both  for and against the claim.

Cover your C file # , name, etc prior to scanning it.

Was this a Peer Review? My Peer review doctor agreed with every one of my charges and then he disappeared, the Regional counsel VA lawyer who wanted to settle with me mere months after I filed FTCA, based on this review, disappeared and the review itself disappeared. I found the Doc and the lawyer and they confirmed that the review had been done and it supported my charges and I should have gotten DIC already.

But VA told me it never existed. I found it at the bottom of my C file years later and used it to win my AO IHD death claim.

Screw them- they tried to stop me at every step of the way-they wasted their time.

There is plenty of FTCA info here as well as 1151 info- I do NOT advise anyone doing what I did.

I had no lawyer and no IMO at all- The internet was not the same then-getting the IMO/IME is more important then seeking a lawyer at this point.If you have a strong  IMO/IME that uses the exact criteria here at hadit for this type of claim-you should not need a lawyer.A good malpractice lawyer would advise you to do that anyhow.

Dr Bash might suggest a specialist if he cannot help you.

Please attach the letter- it seems to say two different things....

Also you can Google independent medical reviewers or medical specialists n your locale-

I would do this right now but I do not know what type of doctor to seek for this type of disability-

 

 

 

 

 

 

 

 

 

 

 

 

Edited December 12, 2018 by Berta

[Berta]

"Mar 6, 2018 - Graves' disease is an immune system disorder that results in the .... If left untreated,Graves' disease can lead to heart rhythm disorders, changes in the ... delirium, severe weakness,seizures, markedly irregular heartbeat, ..."

Source- the Mayo Clinic web site

https://www.mayoclinic.org/diseases-conditions/graves-disease/symptoms-causes/syc-20356240

• "Untreated Graves' disease can lead to thyrotoxicosis and its severe form, thyroid storm, a life-threatening condition that causes heart problems, weak and brittle bones, and death."
• https://www.medicinenet.com/graves_disease/article.htm
• There is plenty of info on the net to support your claim....however- internet printouts , abstracts, etc, are best used by opining IMO/IMO doctors to give their opinion strong weight and you can submit them as evidence your- self but the VA will probably ignore them.
• I feel you have a good case. If the FTCA deadlines run out, there is no deadline on filing 1151- and besides the VA will offset any FTCA $$$$ from any 1151 award you get, until the settlement is paid, or ,as in my case, I negotiated the offset myself with OGC and it was only about 1/4 of the settlement amount. 

 

[ericledusmc]

Problem is, untreated hyperthyroidism made me lose impulse control.  Gave away so much money during that time, that I am drowning in debt and can not afford a civilian Dr. report (they want a few thousand to search my records and give opinion).   Trying to figure out how to attach scanned report.

 

[ericledusmc]

Can't figure out how to attach, so I will quote exactly what it says. It is a report from a V.A. Dr. that R.O. had reviewed my case for 1151 claim.  She is from a different V.A. system.  They actually approved my 1151 today, but because I am already 100% for combat injuries, 1151 actually gives me no new compensation, just wanted it to see her report.

"The veteran is considered a well-versed  and creditable witness by the examiner. Based upon that and evidence reviewed, it is as least as likely as not, (>50%) that the claim disability of Graves disease was caused by or became worse as a result of the VA treatment at issue."

"...Yes, based on the evidence and rational, it is at least as likely as not (>50%) that the additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care."    

"...That the additional disability resulted from an event that COULD have been foreseen by a reasonable healthcare provider."  (Just means it is something that should not have been missed)

"...Yes, failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress." 

Edited December 12, 2018 by ericledusmc
grammer

[ericledusmc]

Can't figure out how to attach, so I will quote exactly what it says. It is a report from a V.A. Dr. that R.O. had reviewed my case for 1151 claim.  She is from a different V.A. system.  They actually approved my 1151 today, but because I am already 100% for combat injuries, 1151 actually gives me no new compensation, just wanted it to see her report.

"The veteran is considered a well-versed  and creditable witness by the examiner. Based upon that and evidence reviewed, it is as least as likely as not, (>50%) that the claim disability of Graves disease was caused by or became worse as a result of the VA treatment at issue."

"...Yes, based on the evidence and rational, it is at least as likely as not (>50%) that the additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care."    

"...That the additional disability resulted from an event that COULD have been foreseen by a reasonable healthcare provider."  (Just means it is something that should not have been missed)

"...Yes, failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress." 

[Berta]

That is GREAT!!! Did the RC or OGC have this report as well??? 

You are only the second person in the 34 years I have dealt with VA, that has 100% SC and 100% 1151-

I am fughting vua CUE over this exact same issue as I am still eligible for accrued benefits- My husband was awarded 100% SC PTSD and then 100% under 1151 for a major stroke they caused.

I am using OGC Pres Op # 08-97-

I hope you will read it over because you too could use it- it has Never been used at all in any claim at the BVA, CAVC, or anywhere else I know of.I askesd some lawyers too ,who never heard of any vet wth 100% SC and Additional 1151 at 100%.

Here it is- never retracted by OGC and written a few months after they settled with me and removed the Gardner moratorium, and 351 became 1151, with this ":congressional intent" that we get ALL as underlined and emphasized in the Pres Op.

This is just part of it- the entire decision is here under 1997 .

https://www.va.gov/ogc/opinions/1997precedentopinions.asp

In part:

.”  We stated that “the language and legislative history of [38 U.S.C. § 351] make clear that Congress intended that all veterans’ monetary benefits payable for service-connected disability or death be payable for qualifying disability or death resulting from, among other things, medical examination or treatment in the same manner as though the disability or death had been a result of military service.”  VAOPGCPREC 80-90, at 3 (emphasis in original)."

 

“.  In that opinion, we clarified the statement in VAOPGCPREC 80-90 that “all veterans’ monetary benefits payable for service-connected disability or death” are available for disabilities compensated under 38 U.S.C. § 351.  We explained that the statement “was generally intended to encompass all disability and death compensation and DIC benefits,” but not necessarily all other ancillary benefits available to veterans suffering from service-connected disabilities.  VAOPGCPREC 100-90, at 2-3.  We stated that “section 351 entitlement may also provide entitlement to certain ancillary and special service-connected benefits depending upon congressional intent.”  Id. at 3 (emphasis in original).”

The word all is underlined in the print outs from the site.

I am going after the "all", that they denied my husband, who died with just 30% and 2 claims pending.

His actual ratings were well over 200% due to AO IHD rating- 6 years at 30% (not paid for 1151 claim yet ) 1151 HBP award,6 years at 10% , malpracticed DMII award -no rating at all -and SMC due to 100% plus over 60% due to 1151 stroke.

If I succeed on this issue on the Pres Op., (I will fight it until I do succeed), I will sure let you know.

I believe my Nehmer AO award used this for a 6 month period of payment under 1151 - but my AOJ told me I got enough money-and their audit is entirely wrong-I filed about 4 CUEs on that award.

I think you might have got the type of review I got- there was enough for the OGC to get a VA medical opinion at VACO- the opiner was the best cardiologist the VA has..and is still there.Odd the OGC denied the claim.....???

 

 

 

 

 

 

 

 

“HELD:

 

Disability compensation may be paid, pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151.”