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. 

 

[Berta]

Reading all of this over, I realise It is possible that you have sent enough info to the RO to decide the 1151 claim.

Are they aware of the internal  investigation the VA did? Have you tried to obtain it under FOIA? (Freedom of Information Act)

You have certainly focused on the Vancomycin toxicity very well. 

There is plenty of info on the internet regarding this med to reveal that you have a basis for malpractice charges.

Does the autopsy reveal a toxicology report? and if so does it reveal the vancomycin amount in his system?

 

 

 

 

 

[Berta]

I have a few concerns over your claim.

I filed 2 CUE claims in 2018 that I thought were grandfathered in regarding the new claims forms,that changed in March 2018.

I had to re file them on the new forms.

When did you file for DIC under 1151 and did you use the 21-534EZ application?

You mentioned Accrued benefits and that form is 21P-601.

That form is for accrued benefits, meaning benefits the veteran applied for prior to his death, that you have substituted yourself for as the claimant.

My CUEs were for accrued due to errors in subsequent VA accrued award letters-meaning the past accrued claims had been supported with evidence and awarded.

The accrued claim you have is a separate issue from the 1151 DIC claim.

What type of claim did your husband have pending at the VA when he died?

FTCA- I hope you are aware of the 1151 FTCA offset factor.

That is explained in the FTCA forum here.

 

 

Edited November 16, 2019 by Berta

[Oceanbound]

To summarize everything--on how to win this.

1. Hire Dr. Todd as the initial IMO.

2. Hire Dr. Bash to IMO the cause of death from Dr. Todd's IMO.

3. Hire the lawyer that won these Torts. 

I remember after the phoenix guy won his, on the radio, he was talking..., so if you can find him though the articles, I'm sure he wouldn't mind being contacted via certified mail and asking who his tort lawyer was. No offence to the VA lawyers mentioned here, but you want the winner lawyer that actually won, which would informally tell the VA your going to put them in the ring with mike tyson and win.

[Oceanbound]

The Lawyer/firm has to be from Tennessee which was where it occurred. And it doesn't have to be a VA lawyer, likely a private lawfirm would be best.

So the phoenix lawyers that won the vet with where the NP ignored the cancer signs can't help. But for future linking if any one from AZ arizona needs one the link provides who fought and won the case

https://www.plainsite.org/dockets/366jtb50p/arizona-district-court/cooper-v-united-states-of-america-et-al/

[Berta]

I posted a link or two , at the beginning of this thread ,to the MANY lawyers in TTennessee who handle malpractice.

The Memphis VAMC has had considerable malpractice problems.

An IMO doctor should have expertise in the filed of this deceased veteran's disability ( we don;t know  what his prime disability was) and should be given copies of all VA and private medical records.

You said:

"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. "

It is possible that VA would give serious consideration of any medical opinions the nurse gave, if their was a full description from his VA medical records, of the medical erros that occurred, and a strong rationale as to how any (or all) of these medical errors contributed to or caused his death.

But VA fights these FTCA issues very aggressively, so I feel an IMO from a doctor with expertise i the field of the veteran's disability would be the best bet.The IMO doctor could incorporate those opinions and rationale into his/her opinion.

Malpractice can create a vast paper trail- every single notation , medical entry nurses notes, Blood chem profiles ,CT scans, MRIs, etc etc, have to be studied. And if any medical notation was crossed out that has to be determined as to what it said.

When I received my husband's medical records, I went back to the very first records he had here in NY, as he had been a VA patient in another state.

His initial diagnose,here in NY was wrong, and that is what led to the next 6 years of medical error.

As I mentioned I had no medical background, and would have preferred to get an IMO , and a lawyer ,but there was no internet as we know it today-

When my daughter insisted I re opened the death claim for DMII, I gladly paid for IMOs, once I determined that she was right. I had to review the stack of medical records again, and sure enough,after I studied Endocrinology, I found the evidence I needed and sent the Stack with a cover letter to Dr. Bash.

He is a Neuro-radiologist but as his opinion stated, he had reviewed the MRIs, etc of "thousands" of diabetics, and thus had sufficient expertise in the field of my husband's undiagnosed and untreated  DMII and his opinion was valid.

 

 

 

 

 

 

Edited November 17, 2019 by Berta

[Berta]

 

You will notice, if you access any of the malpractice lawyers in Tennessee that their fee is contingent on a successful FTCA  settlement.

Most of the cases I have seen involve a full offset of the FTCA settlement to any successful 1151 award.

However, a strong independent medical opinion, which can be quite costly, would be difficult for VA to overcome.

And with a strong IMO, there would be no problem, in my opinion, to get a lawyer to take the case under FTCA.

I certainly believe that a lawyer would require a strong  IMO.

These are some Independent Medical examiners in Tennessee:

http://www.independentmedicalexaminer.com/IME-Directory/Tennessee/

However, unlike the fact that FTCA requires a Tennessee lawyer,

The IMO can come from any expert IMO doctor in the USA:

https://www.imenet.com/

https://www.almexperts.com/expert-witness/medical-malpractice

This firm ,like many others,  has an online chat area- https://www.baileygreer.com/practice-areas/wrongful-death/

They will ask you for some info and could put you in touch with an attorney at their firm.

Perhaps they ,and many of the other law firms, could put you into contact with the best IMO doctors they know-

and it will take strong evidence of malpractice to succeed on this case.

Make sure you tell them (any law firm you contact) this:

 "  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. "

This might actually be strong enough for the 1151 claim- but I have no idea how the VA will address it.

And tell them this:

"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. "

The options you would have, if they deny the 1151 claim, are above.

 

 

 

Edited November 17, 2019 by Berta