Help me please with 1151/FTCA for death of my husband

[JusticeforLt.Col.Sutton.]

On March 12, 2018 my husband was admitted to the Veteran Affairs Medical Center of Memphis, Tennessee for a prescheduled three-day admission. Subsequently, he tragically died on March 22, 2018 at 10:14am due a mind-boggling amount errors and failures of the providers of VAMC of Memphis.  I am alleging that the VAMC of Memphis, Tennessee and the medical providers failed in their duty of care to my husband by their:  failure to monitor and administer Vancomycin properly and  safely, failed to recognize and correct Vancomycin toxicity which lead to Acute Renal Failure, failure to recognize and treat the Acute Renal Failure leading to fluid overload, failure to treat new onset Congestive Heart Failure caused by fluid overload , then failure to assess or render treatment respiratory distress.   In addition, failure to have the proper equipment available to provide airway management, inappropriate administration of anesthesia by resident(far out of scope of practice), failure to  intubate in a timely manner causing hypoxia leading to cardiac arrest.  As well as, failure to follow the Advanced Cardiovascular Life Support (ACLS) guidelines for Cardiopulmonary Resuscitation on my husband.

About three months after his death, I called VAMC of Memphis and asked to speak to his admitting physician/spinal cord attending doctor.  I was transferred to her voicemail. I left a message.  About a week later, I received a call from a lady identifying herself as the Chief Director of the Spinal Cord Center. She informed me that the hospital was conducting an internal investigation about all the events that occurred surrounding my husbands death.   She stated that the admitting physician could not talk to me until this investigation was over.  At the end of the call I ask her if I would be privy to the investigations findings.  She told me no because it was peer review and they did not have to disclose it to me (which I already knew but thought I would just ask).

I myself am a nurse. For me as a nurse, I could not believe the things I read in the medical record. I spent many months piecing the puzzle of the events, in which my husband endured, back together. The medical records were sent to me is true disarray.  It was as though they hit the shuffle button then sent them.  Once I got them in chronological order I began going through it highlighting all import facts as well as all standards of care to research.  While reviewing the records I discovered many, many documents in which I had not received despite requesting ALL medical records.  Each time I discovered I was missing documents I requested them (for example the Blue Alert Record, EKG's, Anesthesia records, etc.). After a total of 11 months, some help from other nurses and physicians I know, I had 1300 pages or so of medical peer reviewed literature to support all of my findings.   I then consulted an independent legal nurse. I have a complete legal nurse review/chronology of the medical record including supporting peer reviewed medical evidence for each finding and failure to provide the duty of care in the medical record. 

I then enlisted a group of friends and we meticulously read through all VHA policies I felt might have been violated.  I created a report citing each VHA policy/directive violated and citing the medical record where the violation had taken place.

 My husband had no choice but to receive his medical care at the Veteran Affairs Medical Center of Memphis. I clearly remember his first admission.  As it began an endless battle with them to provide him dignified, safe , appropriate care. Each time I had to allow VAMC to render care to my husband I feared he might not make it home.  I feared they might literally kill him.  I have spent many drives home crying for this reason alone.   I have witnessed many negligent acts of the staff and at times very dangerous care. I have battled with many nurse managers for change and at times refused to leave him. This was my greatest fear that came true.  I am prayerful and seek to make VAMC of Memphis, Tennessee be accountable for their horrific, negligent care in which they rendered to  my husband causing his death, taking him from my son (who is autistic and now 9) and me.

This is what I have done so far.  I submitted a claim for 38 USC 1151, Accured Benefits, and Pension.  I submitted it just three days prior to my husbands one year date of death.  I included all required documents for the 1151 Claim, copy of autopsy, death certificate, copy of all medical records, the legal nurse review.  And approximatley 1300 pages of medical evidence to support all opinions of the legal nurse consultant.  When I last checked the status of my 1151 Claim on the website it states it is in the review period with an estimated completion day of Dec 31 2019 (for what that is worth). 

I have obtained a certified legal nurse review which states my husband died due to no fault of his own, was not foreseen and died due to multiple VAMC providers medical negligence.  

I am having a lot of trouble obtaining an attorney for the Federal Tort Claim I am going to file.  I have not filed Standard Form 95 as of yet.  As my statued continues to run out I am faced with filing Standard Form 95 on my own.  

My husband served in the United States Army for 18 years followed by 12 years in the Army Reserve.  My husband was a skillful, highly sought General Surgeon, a life-saving Trauma Surgeon,  a teacher to many in West Tennessee, a father to our son whom is now nine,  and my soul mate. .  I have been told my husband cause of death was not as clear as a medical malpractice attorney would like it to be, like a sponge left during surgery or etc.  The events of his hospitalization may not be that clear however, I am confident that their numerous failures to follow clinical practice guidelines fell far below any standard of care one expects in America today and far below the standard of care one would receive in my community as a civilian and caused his death. 

 

[JusticeforLt.Col.Sutton.]

HamSlice,

 

"When was he born, or how old was he, etc."

He was born in 1956.  He was 62 when he died March 22, 2018.  

I had to correct my initial post.  My husband was in the United States Army for 13 years (entered in 1985 and honorably discharged 1998.) and in the Army Reserves for 12 years ( entered in 1998 and honorably discharged in 2010). My appoligies for my critical error on the initial post.  With that being said, did my husband still have reserve retirement coming at age 60?

"After twenty years reserve time, which could be more if there is a minimum requirement in the reserves, like the National Guard (last 8 years must be in Guard) however, even with that, your husband would have a reserve retirement coming at his age 60.

Now, when he got his, Notice of Eligibility for age sixty retirement, he would have had to elect A, B or C on a DD 1883 or similar.  Not sure what the reserve uses and I see this form has changed since I did mine. 

A, service member only.  This means the service member only gets retired pay at age sixty.  The spouse has to sign for this option.  Not as rare as you would think, I had some chose this when I was a clerk in the NG.  If you have a lot of money and are not worried about you spouse if you die, then people select this option as you make more money, as SBP is taken out post retirement pay, i.e., out of you retirement pay.

B, when the service member passes, the spouse will get a portion of his retirement when the service member would have turned age 60.

C, immediate portion of retirement when service member passes.  And then, you can buy (from your retirement when paid) additional percentages.

So, I believe the OP, (original poster), needs to find the DD 1883 Survivor Benefit Plan Election Certificate that her husband would have completed.  She may be entitled to a portion of his retirement right now.

FWIW,

Hamslice

I selected option C, and selected the highest percentage.  So, if I was to pass right now, my wife would get 85% of my retirement immediately, even though, I won't get my retirement for a couple years yet."

Thank you for explaining this in such detail for me. I am hopeful that I will be seeing my C File this coming week at the State Veterans Office.  I signed a POA this week and they are suppose to go through it with me on Wednesday.  I will be looking for the DD 1883 and also be requesting it from the military.

 

 

 

[JusticeforLt.Col.Sutton.]

I have gotten my decision letter about an hour ago. Everything was denied.  I am still trying to calm down and make it through the letter.  I will upload it very soon.  

[Berta]

Probably 95-99% of us here have received denials, and we just kept fighting back.

You stated above:

," I received a call from a lady identifying herself as the Chief Director of the Spinal Cord Center. She informed me that the hospital was conducting an internal investigation about all the events that occurred surrounding my husbands death.   She stated that the admitting physician could not talk to me until this investigation was over.  At the end of the call I ask her if I would be privy to the investigations findings.  She told me no because it was peer review and they did not have to disclose it to me (which I already knew but thought I would just ask)."

I think they would have to send you a copy of it now because the claim was denied.

BUT, as I might have mentioned before- a Peer Review the VA did on my husband's death, that prompted VA Regional Counsel to want to settle with me,mere months after getting my SF 95 and evidence, suddenly 'disappeared,' from the VA , along with the RC and the doctor who did the review-I found them - they confirmed (they had both retired) that this report existed and was on their VA PCs but they could not get access to them anymore.

These Peer Review Reports do exist. I found it at the bottom of my C file many years later.I used it for my AO IHD death claim. So it might be in the C file.

If they did not refer to it in their denial, that would be odd,but not unusual.

If they did refer to it in the denial, I am sure you or your POA could get a copy of it.

In any event-the Evidence list and their rationale for the Denial is what your lawyer needs to see,and maybe the POA vet reps will be able to help you get the C file , as I assume the lawyer is not your POA yet- but would likely need the C file as well as all medical records.

 

 

 

 

[Berta]

To add, I am sure your lawyer is familiar with this:

https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=8154

Issued Nov 21, 2018  ,VA Directive 1190, regarding Peer Reviews.

Your lawyer might suggest an IMO IME doctor but here is Dr. Bash's web site:

http://www.veteransmedadvisor.com/

His credentials and VA experiences are outstanding :

http://www.veteransmedadvisor.com/VA Experience.html

Under his Experiences it states his experience with spinal cord issues.

You would need an IMO doctor with expertise in the field of your husband's disabilities.

Apparently he still has those SVR radio shows I did with him and Jerrel Cook-many years ago they are linked in at his site.

 

 

 

[JusticeforLt.Col.Sutton.]

Berta

Here's the decision letter and report.  

[JusticeforLt.Col.Sutton.]

Berta, 

I expected the denial.  I am ready to fight.  One of my first concerns about this is the evidence list.  It contains only about 1/3 of the evidence I submitted.  ???? Should I re submit everything I submitted that is not on the list.