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

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JusticeforLt.Col.Sutton.

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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. 

 

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3 hours ago, Berta said:

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

Berta, good morning, yes that is true and have posted a reply, maybe you missed my concise response.   

Like I mentioned in a previous post and posted, I found Dr. Todd who is a board cert Neurologist and a pharmacist via the https://www.imenet.com/ website. He would be best to get the IMO with records review from first. She already did the dirty work of putting it all together. Thus having it cost less from him. Then getting Dr. Bash to state the cause of death from Todd's IMO. This will then have more medical malpractice lawyers from Tenn to represent you.

Again how to win this:

1. Hire Dr. Todd to do the initial IMO and records review.

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

3. Hire Tenn medical malpractice lawyer/firm. 

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Berta, 

Thank you so much for all your great efforts to help me. I have been following you on this website.  Your knowledge and kindness to share your knowledge is very commendable.  It is clear ly a passion of yours and now mine.  

I have hopefully obtained an attorney for my FTCA Claim on Friday. I say hopefully because I have not received the contract yet.  The law firm told me on Friday that in fact they planned to use a lot of the "1300 pages of medical evidence" to pursue the case.  I did want to mention that the "legal nurse review" in which I obtained was actually a review from a lady whom is a registered nurse, Family Nurse Practitioner, Acute Nurse Practitioner, and has a Doctorate Degree in Nursing.  Not sure that this changes anything.

I would like to answer all of your questions?

-The statue of limitations in the state of Tennessee is two years.

-The autopsy results mimicked almost word for word the discharge diagnosis of the VAMC medical provider.  With that being said...…… the discharge summary, and discharge diagnosis were false and attempts by the medical records to ...As well as all other providers whom made entries into the medical record after death copy and pasted the MICU doctors discharge summary.  The legal nurse review details the inaccurate documentation into the medical record in attempts to cover up their failures.  It goes over each diagnosis followed by proof of it not being true.

-"Memphis VA has been plagued with malpractice issues- "  Yes the Memphis VA Medical Center of Memphis has plagued with malpractice issues.  They have been dubbed the "House of Horrors" in the below USA Today article.

https://www.usatoday.com/story/news/politics/2017/09/07/memphis-va-botched-surgery-veteran-patient-safety-threats/637497001/

The Office of Inspector General release a report about Memphis VAMC in March of 2018 (Days after my husbands death).  See Below

https://wreg.com/2019/09/05/report-faults-care-at-memphis-va-medical-center/

I could go on and on about the VAMC of Memphis however lastly I will say Memphis is rated one star out of five stars on the VA's official quality-of-care ranking.

-"Mine went first to Regional Counsel and then, (now they are called District Counsel)after a very obvious attempt by VA to deny the FTCA, it went to the General Counsel, in DC. The Peer review they did caused the RC to want to settle with me within months of getting my SF 95. Then the Peer review, the RC, and the doctor who did the review 'disappeared and VA said that review never existed. I had to start all over again with the OGC. I found the Review many years later at the bottom of my C file and used it for my AO IHD Nehmer claim. If I had been able to find any lawyer who would help me, that BS would not have happened. "

Could the Peer review your speaking about be the same type of investigation I was informed of.  When the director of the Spinal Cord Injury Unit called me the second time, I asked her if I could receive a copy ( I knew the answer was No but just wanted to say I asked).  She told me since it was Peer Reviewed it was protected.  Tomorrow I am going to go back to Regional Office and attempt to view my C File.  I have requested a copy of the C File under the FOIA certified mail but do not have a reply yet.  When I went to the Regional Office located in Jackson TN the first time to view the C File they wanted me to sign a "limited" power of attorney form.  I was told this would be the only way they could access this information for me to view.  I left until I could find out what to do about this.  Is this normal?  To sign a power of attorney?  Seem untrue? What steps should I take from here.  I know I must see the C File.

-I admire you Berta because I too have spent endless hours, days and night research medicine (I am lucky because I had access to doctors, nurses, my husbands medical library, and access to his online memberships to different medical specialty websites).  Making a timeline, finding their failures and medical errors, research VA law ( I work part time for a criminal lawyer this gave me access to a wealth of information).  Then I research at least 100 VHA Policies, Manuals, and Directives. I highlighted their violation of the policy as it applied to my husbands care followed by the entry into the medical record where the violation occur including direct quotes and citiation's from the medical record. I found violations of 31 of the VHA Policies including placing my husband on mechanical ventilation then removing the mechanical ventilation all without my knowledge more importantly my consent.  

-"Reading all of this over, I realize it is possible that you 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)"    

No I did not mention nor make them aware of the internal investigation.  I assumed they would have it.  Should I send in a letter to them immediately to make them aware and request a copy via FOIA?

-"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?

The toxicology as well as the entire autopsy did not contain a vancomycin level however the medical records last Vancomycin Level was done about 12 hours before his death.

-"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."

When I filed for DIC under 1151 I did use the 21-534EZ for at the top it states "NOTICE TO SURVIVOR OF EVIDENCE NECESSARY TO SUBSTANTIATE A CLAIM FOR  DEPENDENCY AND INDEMNITY COMPENSATION, SURVIVORS PENSION, AND/OR ACCRUED BENEFITS ".  Should I have filed the 21P-601 form also for Accrued Benefits?  With that being said, should I even be applying for accrued benefits.  I received a letter on March 2018.  "Based on a review of your medical records and recent examination, the Department of Veteran Affairs has determined that your disability, injury, or condition meets the criteria for a catastrophic disability. " I did not even know that my husband had received an exam for this nor that a form had been filled out. This is, however, what prompted me to apply for accrued benefits.  Any help would be much appreciated.

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

That is explained in the FTCA forum here.

This is really important to me at this point.  My sitituation is this. My husband and I have a son whom is now 9 together.  My husband also has five other adult children from his first wife whom died.  It is my understanding in the State of Tennessee any settlement or award revieved who be distributed as follows after attorney fees: 1/3 goes to the surviving spouse, 2/3 would be divided equally between the total of 6 children ( despite my son being a minor and a minor with a disability).  In regard to the offset of the 1151, would I be responsible for the entire award/settlement or only what I received.

-"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. "

My husbands primary disability was an incomplete spinal cord injury he sustained in 2013 after falling while walking down a movers ramp hitting his forehead on the foot plate of the front door thus sustaining a incomplete spinal cord injury at C 3.  He could stand in place for about 45 seconds, pivot, transfer himself, and could move his legs around when in a sitting position but simply could not walk. As well as losing the dexterity in his hand. For example, he could pick up a cup a pencil but not a penny off of the table.

-"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 errors that occurred, and a strong rationale as to how any (or all) of these medical errors contributed to or caused his death. "

She did amazing. She did all of the above extremely meticulously.  

A mind boggling amount of errors occurred within the ten days.  Errors by nurses, errors by medical staff, failure to review diagnostic studies after ordering , administration of wrong med, failure to treat Acute Renal Failure for five days till death, fa

Also I would like to say that when my husband situation became emergent a total of 14 physicians respondent and were present.  Each and every provider documented an entirely different sequence of events.

In addition in ten days he had a total of 36 resident physicians and a grand total of physicians on the record providing care without almost zero communication between providers.

-"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. "

About one week after my husbands death, through the attorney I work part time for I requested a copy of the ENTIRE medical record from March 12 2018 (admission)- March 22 2018 (death). 

I discovered numerous documents images , lab studies, consultation notes, event notes, physician orders, pages to the medication administration record, the Blue Alert Record,  and etc that were not included in my three different request for the entire record.  Each of the above I request as soon as the discovery of not receiving it was made.

 "You also need to determine if the doctors were VA employees or federal contractors. The multiple federal contracting doctors VA has employed in the last few years are exempt from FTCA. "  How do I truly know? Who do I ask?  Where do I request this information?

Lastly, Thank you for the links to IMO .  If my claim is denied I plan to contact Dr. Bash immediately.  

 

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Oceanbound

Thank you so very much for your helpful advise.  I had heard about Dr. Bash before however Dr. Todd and Dr. Anaise  are new to me.  With your and Berta's recommendation of Dr. Bash my intention is to contact him immediately if my 1151 claim is denied.

have hopefully obtained an attorney for my FTCA Claim on Friday. I say hopefully because I have not received the contract yet.  The law firm told me on Friday that in fact they planned to use a lot of the "1300 pages of medical evidence" to pursue the case.  I did want to mention that the "legal nurse review" in which I obtained was actually a review from a lady whom is a registered nurse, Family Nurse Practitioner, Acute Nurse Practitioner, and has a Doctorate Degree in Nursing.  Not sure that this changes anything.

I will not be speaking with anyone from the VAMC of Memphis nor any other VA employee at all.  Can you believe I actually had an attorney tell me only last week "If I were you I would call one of the doctors who might remember you and see if you can get them to admit the mistakes."  Our conversation ended shortly after that and I knew they were not the right attorney for me.

Again thank you for everything.  I hope to continue to have interaction from you.

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To answer your questions:

This is what accrued claims are based on-(the only exception is for Agent Orange claims,falling under Nehmer.)

https://benefits.va.gov/BENEFITS/factsheets/general/accrued.pdf      

They derive from substituting yourself as the claimant and pursuing the claim the veteran had filed.

If he did not have a claim in progress, I am surprised that you got this type of letter:

 “ I received a letter on March 2018.  "Based on a review of your medical records and recent examination, the Department of Veteran Affairs has determined that your disability, injury, or condition meets the criteria for a catastrophic disability. " I did not even know that my husband had received an exam for this nor that a form had been filled out. This is, however, what prompted me to apply for accrued benefits.  Any help would be much appreciated.”

Is that all the letter said?

I suggest getting onto ebenefits to see what this is about-

Did he ever give a Vet rep his POA? If so maybe they would know.

It should be in his C file. I would definitely sign a limited POA for the C file-they probably wont give you much time to see it and it and maybe you would have to wait for some time for them to get it.

You should definitely search the most recent documentation to see if he did have a  claim pending.If so hopefully they would give you a copy of it or anything else you find,with the limited POA.

Here is the Memphis VAMC web site info if you need any of these phone numbers.

 

https://www.memphis.va.gov/contact/phone_directory.asp

“She told me since it was Peer Reviewed it was protected.  Tomorrow I am going to go back to Regional Office and attempt to view my C File.” That tells me that they got a Peer review for the 1151 claim you sent. That might be available after they make a decision-and could be of great help to any IMO doctor, if the VA uses it to deny the claim.

The nurse you mentioned does have outstanding credentials-I wonder if the VA gave her info to the Peer Doctor….?

This is alarming but critical to your case:

“Also I would like to say that when my husband situation became emergent a total of 14 physicians respondent and were present.  Each and every provider documented an entirely different sequence of events.

 

In addition in ten days he had a total of 36 resident physicians and a grand total of physicians on the record providing care without almost zero communication between providers.”

The key word there is “providers”:

I recently was involved with a malpractice case, where by the VA took 8 months to find out the malpracticing doctor was a federal contractor and NOT a VA employee. The veteran’s SOL ran out- In California there is only a one year Statute of Limits.

I questioned both him and his lawyer and sent the OGC a fOIA on this because I clicked on a few doctors at this site below and found out in mere seconds that they were contractors who are not VA accountable under FTCA laws. The veteran or his lawyer could have done that-themselves and potentially staved off the SOL problem.

It will be critical to your claim if any of these doctors were "Providers"-they are covered by 1151 but not FTCA because technically they are NOT VA employees.

You can search for the doctors here:

https://www.accesstocare.va.gov/OurProviders/SearchResults

If they are not here, I suggest  first to google them , to determine if they are  actually a VA employee.

 

Or they might be contracted by QTC, LHI, or VES- I have contact numbers here under a search for them.

I suggest also sending your lawyer this  post here-because the above veteran ( who VA agreed had been horrifically malpracticed on) had a well known lawyer who did not seem to even be aware of the “Provider” situation VA caused a few years ago. Even as an advocate myself, I was stunned to learn last year from a VA employee that most of the doctors the local VAMC  has now , are federal contractors.Not liable under FTCA.

 

A VA doctor treated me many years ago at the local VAMC.

As far as I know he is still employed there.

I used the search feature in the link above to "Our Providers".

However he is not liable under the provider’s provisions, for FTCA.

He is a federal contractor….and was  a contractor ,over 10 years ago, when he treated me.

I feel every veteran in the VA health care system should be aware of the fact that VA has started to employ countless contractors at every VAMC.Good doctors and nurses are fleeing the system.I don't know why.

Also  ( Dr Bash and I discussed this many years ago) there is NO accountability to the NPDB for 1151 doctors who have been found to have  committed malpractice. My Bill with Congressman ROE ( HVAC)could change that all radically.

 

 

Edited by Berta
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One more thought-

When the VA told me that the favorable Peer Report the Regional COunsel obtained months after he got my SF 95-

had "never existed" ( which was only one of many lies the VA told me)I called the VISN Director to see if he was aware of where it might be).

He was shocked that this was the first time he was hearing of a recent  malpractice situation in his VISN, that he should have been made aware of. He had no idea where I could find the Peer Review report ( but as I mentioned I found it at the bottom of my C file many years later and used it for my AO IHD death claim. They might have put that report into your husband's C file too)

https://www.visn9.va.gov/VISN9/about/leadership.asp

That is the most current( July 2019)list of the VISN phone numbers.

I also feel that the VAMC ( Memphis) probably has a list of who their contractors are-and someone at their web site link might be helpful with that.The VA took down their past description of the contractors- but I posted it here. What would be awful if the VA asked a contractor to do the Peer Review-because there are not a Peer- as they are not VA employees.

In the case I was involved in, last year, the malpracticing doctor had a VA office, wore a white coat and had a VA lanyard on to identify herself. I raised to the various entities who had tried to help this vet, that in fact, maybe she was a VA employee and the OGC just BSed him and his lawyer. I know the VA will lie about anything regarding these types of cases.

I never asked for her name because I know neither the veteran or hislawyer would give it to me.

I would have called the three contracting firms,VES, QTC, or LHI to find out her actual employment  status , and called the VAMC, and I would have also looked up her name at the Providers list link above.

It was the strangest FTCA situation I have seen yet.

 

 

Edited by Berta
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On 11/17/2019 at 3:34 PM, JusticeforLt.Col.Sutton. said:

Oceanbound

Thank you so very much for your helpful advise.  I had heard about Dr. Bash before however Dr. Todd and Dr. Anaise  are new to me.  With your and Berta's recommendation of Dr. Bash my intention is to contact him immediately if my 1151 claim is denied.

I contacted Dr. Bash in 2016, choosed to go with different experts, locally. Dr. Bash, Anaise, and Ellis are the 3 known by vets and the VA.

But, I went and looked for, if I needed an expert in cardiology or medication toxicity / CKD or TBI or etc etc. And Dr Todd is one that made my list. Dr. Todd is a neurologist and before that a pharmacist. You can not find someone better than Dr. Todd, I looked. 

Which is why you want to hire him first and hit the starting line strong in the marathon race. You already did the pre-trail test, on gathering and organizing the medical documents. You are on track of being successful because you organized it into like a table of contents in a book.  Then you joined this site to have direction. You now have a lawyer/firm in Tenn. Now hire Dr. Todd so that you can have the IMO before year end (which is completely achievable because again you did the dirty work over the past year, saving any doctor time from asking "you" i need this... i need that.. and that takes time.) You already started the race by doing that and now you're already past the starting point.

Then hire Dr. Bash for the cause of death with Dr Todd's IMO.

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