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.]

Thank you so much.  I wish I had found this website much much sooner.  I am stunned at the moment. I just check my claim status online and.....a decision was rendered today for my 1151 Claim?  Are there any other options for finding out the decision other than waiting for it to arrive by mail?

[Berta]

None I know of unless they post it on ebenefits- which I have not used for years.

Others here will know.

If it is an award, it might be a good idea to accept that award, instead of filing for FTCA- due to the offset factor.

I recommended doing that to a very good friend of mine and my husband, and I knew he would be awarded 100% P & T under 1151. He is still glad he made the decision not to FTCA them and they awarded 1151  in a few months.

The offset factor depends on many other things, probate situations, and estate matters, all of the things that need to be done after a spouse dies. His overall 1151 compensation, which was awarded around 1996  is now probably a far greater amount than any settlement they would have paid to him, if he ever totals it up.

Also many states have settlement caps and one would have to go to a Federal court if they refuse any reasonable settlement offer-and the VA could fight them again. I certainly refused the initial offers until I got what I thought was fair- but this is what lawyers should do-

If the VA denies the claim, then I am sure you could get a copy of the Peer Review, and this would give a IMO doctor a lot to work with.My 1151 claim was denied many times, as I recall , and they had the same evidence the General Counsel had.But it could be, like the man I mentioned above, they might have made an an award. Since then he has obtained SMC in addition to the 1151 award.

My 1151 DIC was changed to direct service connected death DIC under two separate theories of entitlement but I have no other BVA decision or case that shows any other survivor claimant did that.

1151 has very few ancillary benefits-no CHAMPVA, No DEA, etc etc 

That is why the VA had to refund my FTCA offset.I  have filed under a new theory recently as well. NOTHING is impossible- it just takes a lot of very hard work.  I know of no other situation like mine.

I do not see any potential in your case for direct SC death.But it seems there could have been a claim pending when he died.???? 

 

 

[JusticeforLt.Col.Sutton.]

Berta I believe my husband did have a pending claim though I still am not sure what this means exactly.  The entire letter read exactly as follows:

"Mr. X

Based on a recent review of your records and examination, the Department of Veteran Affairs (VA) has determined that your disability, injury, or condition meets the criteria of a catastrophic disability.  As a result you will be you will be immediately enrolled in Priority Group 4, unless you are eligible for enrollment in a higher Priority Group.  Official notification of the changes in your enrollment status will be sent by separate letter.

Veterans enrolled in Priority Group 4 are eligible for all needed services included in the Medical Benefits Package.  Veterans who are determined to be catastrophically disabled are not required to pay inpatient, outpatient or prescription copayments that would otherwise apply. If you have any questions feel free to call the enrollment office at 1-800-636-8262 or 901-523-8990 extension 7972.

Putting Veterans First.

Michael Harper

Chief/Business Office"

[Berta]

That is exactly how the VA defines Priority 4;

https://www.va.gov/health-care/eligibility/priority-groups/

I would call those numbers if I were you-they might be able to tell you if he had a claim in progress when he died...

Did your husband receive VA comp for any service connected disability-?

 

 

 

Edited November 20, 2019 by Berta
took some info off

[JusticeforLt.Col.Sutton.]

Berta,

I believe you guided me to the right track.  I now believe my husband did have an ongoing claim.  I am not quite sure how the "catastrophically disabled".  However I wanted to show you my new discoveries.  I discovered two additional letters after sifting through four banker boxes.  This time I have slowly read each and every word of all Department of Veteran Affairs letters.

The first dated January 2, 2018 (my husband died March 22, 2018). It appears this was the letter from the VA letting my husband know they received his claim.

The second dated January 18th, 2018.  Is informing my husband that his claim for Veteran's Pension has been denied because he is over the income limit for a "married veteran". When you first read it you would assume it is true and that he did not qualify.  I am assuming this is what he must have thought in January when he received the letter.

However, there are multiple errors.  

#1 They used the allowed income limit for a married Veteran (17,241).

      They should have used income limit for married Veteran with one dependent (17241).

       Plus one additional dependent (for our minor son) ( 2250 )=19,491.

In addition, with the catastrophically disabled"  just may mean he qualified for Aid and Attendance (which would put income limit at 26,036+one depend 2,250 =28,286.

Or it may mean he qualified for Housebound with one dependent (20,166) plus one dependent (2250)= 20,416.

No matter what the case maybe be they calculated the income limit wrong.

 

#2  The VA did not have the correct income per Social Security Administration.  My husband reported receiving 2,225 monthly.  The VA said SSA reported monthly income as 2,412, thus annually 28,944.                                                                I called SSA then went to local office.  I obtained proof from SSA that in fact my husband made less than even he reported making, only 2,199 per month or 26,388.

Most importantly, thank if you had not continued to tell me that he may have had a claim open I would not pursed this.  The letter from the VA said I only had till January 18, 2020 to submit new evidence and appeal the decision.  So I did not have much more time.  Again thank you.

 

 

 

 

 

 

 

 

[JusticeforLt.Col.Sutton.]

Berta, would you please give me your opinion on the attached additional letter in which I received recently on October 23, 2019.  I have no idea what this is.  I called the company.  They informed me it was a review of medical records?????