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]

LHI was contracted to give him a C & P exam. I ca hardly read it even when I magnify it-

You got it recently, but but what is the date of that  exam.?

What I see here is that he applied for a Pension ( far different from a service connected claim)

If he did not appeal this decision and point out their errors, the date of the decision tells me the only way to get this changed is to file a CUE claim.

But I do not know if pension's involve accrued benefits-will try to find out-

Was there anyone ( like DAV- VFW- AL )  mentioned as his POA on the pension denial?

 

[Berta]

I assume you applied for DIC and/ or Pension on the 534 forms.

If the VA denies the 1151 claim, they would surely make a decision as to any pension you might be eligible for-

This is the VA's criteria for widow/widowers Wartime pension:

https://www.benefits.va.gov/pension/spousepen.asp

 

Once they determine that, they would see if you are qualified for the Wartime pension. It is income based and they will count your income, and also deduct for medical expenses as they did on the letter your husband got.

I have very limited Wartime Pension experience.

In 1982 VA awarded me a Wartime widow's pension, but they said I made too much money so that was that. 

( I have been widowed twice by two veterans)

VSO and Vet Reps often have more expertise with pension issues, than with SC claims.

I suggest that you use this link to find a VSO near you to help with the pension error as well as advise you as to whether the pension your husband applied for, once the income error is fixed, if you would be eligible for accrued benefits if they do award him a pension after the error is fixed.

https://www.va.gov/ogc/apps/accreditation/index.asp

Or is it possible he appealed the Pension decision? If there is a POA on the pension denial letter from VA, I would call them to make an appointment with them.

I was not able to find anything at the BVA that regards a widow getting an accrued pension award.

Vet reps and VSOs would know.

 

Edited November 24, 2019 by Berta

[Berta]

I have a concern over the error they might have made in the pension denial

You had stated: "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"

That means he surely received a pension from the DOD, in addition to SSA, and if so, was that info included on the VA Pension form? All I could see on the letter regarding the pension was his SSA annual award.It my or may not include the Medicare amount.

That also means , as a retiree, he might have paid into the SBP program, which would have garnered you an annuity payment, monthly.

I have no idea what kind of impact that could have on any 1151 DIC award.

Gold Star Wives ( I am a member) aggressively fight every year for the SBP offset to their DIC to be eliminiated, in those cases whereby the Gold Star wife (or husband) were eligible for a direct service connected death ( DIC) but it was offset by their SBP annuity.

It is one of many issues they fight for, for their members:

https://www.goldstarwives.org/legislation

Also

"Military Retirement and Social Security Benefits

Retirees can get both Social Security benefits and their military pension. Learn how the Social Security Administration (SSA) credits military service for your benefit. (PDF, Download Adobe Reader) "

https://www.usa.gov/military-pay#item-36297

I did not see anything on the one page letter you posted above  regarding the pension matter, with  any accounting for his Military Retirement Pay.

It is 27 or 29 a on the 21-527 form as to any other income. I would consider Military retirement as Income 

I have a friend -32 years Retired Military- SSA, and another separate fed Service pension and will ask him about that. He has to pay Taxes on it all.

 

 

 

Edited November 25, 2019 by Berta

[Carl the Engineer]

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

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.

 

 

Edited November 26, 2019 by Hamslice
cause I can

[Berta]

Thank you Hamslice!!!!!!!

That is how my Ret. Commander  Navy friend explained  it as well.

To clarify what I said about DIC- basically GSW is seeking the same "concurrent receipt " that SC retirees get.

That info is here under a search for anyone who needs.

They can pick DIC, if they are granted it ,and if it is a higher  benefit than the SBP.

 

 

 

[JusticeforLt.Col.Sutton.]

Berta

"LHI was contracted to give him a C & P exam. I ca hardly read it even when I magnify it-

You got it recently, but but what is the date of that  exam.?

What I see here is that he applied for a Pension ( far different from a service connected claim)

If he did not appeal this decision and point out their errors, the date of the decision tells me the only way to get this changed is to file a CUE claim.

But I do not know if pension's involve accrued benefits-will try to find out-

Was there anyone ( like DAV- VFW- AL )  mentioned as his POA on the pension denial?"

Berta

Yes it was recently.  The letter is dated 10/19/2019.  My husband died 17 months prior to letter on 03/22/2018.  This is what stumped me when the letter arrived.

Yes it appears he had applied for pension on the letter from the Department of Veteran Affairs dated January 18, 2018.  It also states on page three, "If you do not agree with our decision, you should write and tell us why.  You have one year from the date of this letter to appeal the decision.  The enclosed VA form 4107, Your Rights to Appeal Our Decision explains your right to appeal."  It is my intention to Appeal the decision very soon.  It will be next week before I am able to go to the Social Security Administration Office to obtain all proof I need from them to submit with the appeal.  

There was no POA listed.  I am quite sure he did this himself.  He was bound to his wheelchair so if he had gone to a VSO I would have taken him.  I am sure we did not do this.

Did you find out if pension is involved in accrued benefits?

 

 

 

 

 

 

Edited November 27, 2019 by JusticeforLt.Col.Sutton.
Forgot to remove id of letter