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1151 and/or FTCA advice


Berta

Question

I am putting this link here:

https://community.hadit.com/topic/74381-filing-a-claim-for-a-heart-attack-due-to-nsaids/page/6/#comment-466477

so that I don't have to repeat the advice again-

If anyone vet or survivor of a veteran, feels the VA malpracticed on the veteran, they need to obtain an IME, if the vet is alive, or an IMO if the vet has expired.

They will need to give the IMO/IME doctor ( who should be a specialist in the prime and/or secondary cause of death, on the death certificate) the complete VA medical records of the veteran and copy of  autopsy findings if an autopsy was done.

 

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Update- since October 2018 I have spent many hours every week researching a very unusual FTCA/1151 situation.

The problem was based on the OGC telling a veteran that their negligent care ( the malpractice had been confirmed) was a federal contractor, and was exempt from FTCA. By the time the OGC told this to the veteran ,his Statute of Limits had run out-

I have received shocking information, by accessing considerable regulations and laws that reveal the OGC might well have stretched the truth on this whole thing.

I am trying to contact the NPDB to see if this has ever been revoked or rescinded:

"§46.8 Independent contractors.

 

"Independent contractors acting on behalf of the Department of Veterans Affairs are subject to the National Practitioner Data Bank reporting provisions of this part. In the following circumstances, VA will provide the contractor with notice that a report of a clinical privileges action will be filed with the National Practitioner Data Bank with a copy with the State Licensing Board in the State(s) in which the contractor is licensed and in which the facility is located: where VA terminates a contract for possible incompetence or improper professional conduct, thereby automatically revoking the contractor’s clinical privileges, or where the contractor terminates the contract, thereby surrendering clinical privileges, either while under investigation relating to possible incompetence or improper professional conduct or in return for not conducting such an investigation or proceeding. (Authority: 38 U.S.C. 5705)

 

[67 FR 19678, Apr. 23, 2002]"

 

Source: https://www.federalregister.gov/documents/2002/04/23/02-9875/policy-regarding-participation-in-national-practitioner-data-

It also still appears in  https://www.law.cornell.edu/cfr/text/38/46.8

The National Practitioner Data Bank is supposed to be contacted by VA every time they make a settlement under FTCA.

This above regulations means that independent contractors are as liable for malpractice under FTCA and also under 1151 ,38 USC.

Is the OGC making things up, and refusing to apply regulations, to the detriment of veterans with FTCA cases?    This is the strangest situation VA I have ever seen.

 

 

 

 

 

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  • HadIt.com Elder
20 hours ago, Berta said:

by the time the OGC told this to the veteran ,his Statute of Limits had run out-

What is the statute of limitations for FTCA/1151's?

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  • HadIt.com Elder

@Berta Regarding the link to my topic about heart attack due to NSAIDs, I am considering filing an FTCA and my two year window to file closes early next month.

What kind of dollar amount should I enter into the form?

Here's the background. In January of this year, the VA finally granted SC for the heart attack caused by side effects of sumatriptan to treat SC migraines. The FDA insert described heart attack as as very rare side effect, but the other issues ignored by the VA compounded the risk. Even after the heart attack, the VA continued to prescribe the same med even though it was contraindicated, placing me at even greater risk. My non-VA neuro doc wrote me a more likely than not nexus. She said she would not expect a cardiologist to fully understand the risks associated with this med and she tied it all together. I did return to work a few months later and have been managing, but it is tough to come back from death's door. Heart wise, I am managing and still have issues like brain fog, stamina, sleep issues, angina, and increased stress. Those might be due to side effects of all the additional heart meds. My last stress test did show improvement. No idea how long I will be able to continue working, so taking it one day at a time. I have a four year old and a newborn to consider. Planning to sign up for S-DVI because my private insurance renewal rate is through the roof. Just curious how much I should request and how to best present it...

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"What kind of dollar amount should I enter into the form?"

Ask for Millions-I did.

Make sure you fill out the Personal damage as the total amount-a well in 12 b and 12 D

https://www.va.gov/OGC/docs/SF-95.pdf

The Witness section is usually for accidentclaims, like if a VA bus hit you on VA property.

I however filled it put ( needed additional page) for every VA doctor who either malpracticed on my husband or committed a cover up of that malpractice, when he was sent from Bath NY VAMC tto Syracuse VAMC

You said" the VA finally granted SC for the heart attack caused by side effects of sumatriptan to treat SC migraines. "

Was that granted as secondary under 1151?

If so  the susequent problems you have had would be the basis for FTCA or an aditional 1151 claim.

I filed at least 4 separate 1151 claims on my husband's death in addition to the FTCA case.One put him into posthumpus the SMC criteria.

You said:"Those might be due to side effects of all the additional heart meds. "

I assume you mean additional meds that were not considered in the award letter?

I had to prove to the OGC that the VA not only failed to properly diagnose and treat my husband's 1141/FTCA disabilities and one med they gave him was contraindicated by another VA med they gave him, and thus this medication contributed to his death.

It pays to do a search of every additional heart med they gave you, use good web sites, to see what other meds might have contraindicated others, and what meds were causing you more disabling affects.

You said: "Even after the heart attack, the VA continued to prescribe the same med even though it was contraindicated, placing me at even greater risk. "

Because the VA diagnosed my husband;s first attack attack -as a sinus infection- they continued to prescribe to him Sudafed 3 times a day (contrainicated by his HBP med - wrong  dose)until his fatal heart attack 6 years later, that is how this medical error alone contributed to his death.

I found an X ray of his sinuses in his med recs and his sinuses were clear- he did not have a sinus problem.

You said "My non-VA neuro doc wrote me a more likely than not nexus. She said she would not expect a cardiologist to fully understand the risks associated with this med and she tied it all together. "

Even after the heart attack, the VA continued to prescribe the same med even though it was contraindicated, placing me at even greater risk. My non-VA neuro doc wrote me a more likely than not nexus. She said she would not expect a cardiologist to fully understand the risks associated with this med and she tied it all together. "

sorry for doubles- wind hitting my dish

She gave VA a way out-in my opinion- a VA Cardiologist SHOULD KNOW what medications are contraindicatedby others.

Everything I know about FTCA is in our FTCA forum here-

and one thing is imperative to consider-

you must prove that the VA doctors ( make sure they all work for the VA as those QTC,LHI,VES "doctos" are exempt from FTCA) did not diagnose ,medicate, and treat you with the same ability that the standard medical community would have diagnosed ,treated, and medicated you.

"8. BASIS OF CLAIM (State in detail the known facts and circumstances attending the damage, injury, or death, identifying persons and property involved, the place of occurrence and the cause thereof. Use additional pages if necessary)."from the SF 95

Make sure you give this a lot of thought and do not leave anything out.

I used the same #8 basis for my initial 1151 wrongful death claim.

When I FTCAed the VA, there were no malpractice doctors on the internet in those days and certainly no way to find an IMO/IME doctor.Twenty or more NY lawyers I called or met with said I could never succeed in my claim.

So I did all of the medical and legal work myself and won.

However I do not advise anyone doing that, these days, unless they have a LOT of free time to do medical research, carefully assess every single medical record they have, to include their medication history records and have some sort of a legal and medical background.

As I mentioned before-althugh I won the malpractice claims, my daughter insisted, when she was in the Military) that dad could have had diabetes mellitus which she knew was an AO presumptive.

I finally did what she asked and went through the entire medical records again-seeking any evidence at all that the VA ,missed diabetes mellitus-never diagnosed or treated by VA at all.

Again I spent time research and learning Endocrinology and filed the claim, not as 1151 but as direct SC death. I had 3 IMos ,doctors who agreed with me based on his med recs, and my lay medical assessment of those VA records , and I won.

 

 

 

 

Edited by Berta
wind storm
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Thanks @Berta

Berta,
No, it was just secondary SC, not 1151 (I did not think it was possible to get SC and 1151). I did get SMC-S for the three months I was out of work.

The award letter was focused just on SC. There was no consideration taken regarding any additional side effects of the new meds I had to begin taking since the heart attack.

Ironically, back in the late 1990s, the VA did precribe sudafed 360 count a couple of times. I am SC for allergic rhinitis so I have been on antihistamines since not long after entering the Army in 1990.

The med was also renewed by my primary care doc (VA employee at the time), so it was not solely prescribed by just the VA neuro clinic's (university residents).

I talked to a couple of the big VA law firms I have seen here and nobody was interested. They said they handle appeals, not FTCA (even though one said they handled it on their web site).

Update after digging through my VA records

Could this be considered negligence?
The initial prescription was in 2014 by my VAMC primary care doc (not a neurologist). The next week, I sent a secure message requesting a second opinion from cardiology because the doc had mentioned concern about it raising my blood pressure. A NP responded stating "If Dr. XXXXX ordered the medication for you headache it should be find to take it." The cardiology review never happened.

The script was also renewed/refilled later by a different VAMC primary care doc. It was also prescribed numerous times by other VAMC neurology residents (students/contractors).

 

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