VA’s “Ethical & Legal Obligation to Disclose Adverse Events”

[UpToHere]

13 months after my VA providers diagnosed that the lump on my thigh was a lipoma, pathological examination of the resected lump revealed it was a soft tissue. sarcoma.

Because my VA surgeons did not take margins when they resected the lump, I needed corrective surgery.

My VAMC’s Tumor Board referred me to civilian care for a wide resection, and for radiation therapy, but told me I had to pay for my care, myself.

I commuted ~8500 miles for surgery & 34 radiation therapy sessions, but VA refused me travel allowance.

I ended up bankrupt, homeless, and hit by MDD.

Eventually I was granted 1151 benefits, for the residuals of surgery & radiation therapy.

My date of claim, however, was ~3 years later than my date of injury.

Subsequently, I petitioned for equitable relief on the basis that my providers had breached their “ethical & legal obligation” to disclose adverse events in my care, and thereby kept me in the dark about my care.

VA globally denied I was eligible equitable relief, but didn’t specifically address my basis for saying I was: that by failing to disclose the adverse events in my care, VA had deprived me of the knowledge I needed to file timely for 1151 benefits.

What options do I have now?

 

 

 

 

 

 

 

 

[Dustoff1970]

If it has not been more than two years since your date of VA Injury or the date that injury was discovered then you can still also file a Federal Tort Claim action in district court alleging VA malpractice.  You must find and use a highly experienced tort claims lawyer to do this for you.  You can use online attorneys directories by specialities or go to nearest law library and use their up to date directories,  and in Texas law libraries in the County courts building are open to the public with a librarian to assist you.  Use only an accredited specialist lawyer for federal/VA medical malpractice claims.  Large public libraries will have this info also.

The U.S. Court of Appeals for Veterans Claims (CAVC) maintain a list of accredited attorneys on their website links who are allowed to file veterans disability cases before the court.  These attorneys such as Kenneth Carpenter of Kansas are very experienced in all manner of vet claims including injury claims.

If you have not done so you can file a claim for earlier effective date of your VA Injury based upon the facts you can prove such as any medical documents you can find, copies of yours and VA correspondence, etc.  You may have a good case for this also being a CUE claim.

Even though you have already been granted a VA Injury Section 1151 claim you can still file a Fed Tort Claim and if you win then the money already paid to you will be deducted from the tort claim win amount.

I just reread your post and now see it has been over 2 years since your injury so best bet is now to file for the earlier effective date alleging VA error or CUE in their decision.  It is a long shot.

You can do as I did and contact many U.S. Senators and Congressmen in many different states by sending them your pleadings and copies of the VA injury that was done to you.  I did receive favorable response and assist from most of them about my VA Injury Section 1151 claim in 2000.

The above info is not legal advice as I am not an attorney, paralegal or VSO

Edited December 19, 2019 by Dustoff 11

[UpToHere]

Thank you.

However, I only learned of adverse event disclosure after the clock had run out for filing under F.T.C.A. 

[Dustoff1970]

I would contact the Kenneth Carpenter Law firm of Kansas and discuss this with them as they may be of great assistance.  Kenneth has been practicing law cases before the BVA and CAVC vet court since at least 2000.

If anyone can help you in this matter then it is him or a few others like him.  The DAV or American Legion, etc may be of assistance.  Just like I learned to do try all long shot options until something sticks.

Another great veterans law attorney is Dr. David Anaise, M.D., JD who like carpenter has many years of representing veterans before the VA and BVA.

His address is 1001 W. san Martin Drive, Tucson, AR 85704 and he has an email address that I use extensively for communicating with him.

Edited December 19, 2019 by Dustoff 11

[Vync]

Here is the VHA directive here: https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=8120

I read through the document and was quite surprised. I assumed it was relating to adverse events relating to procedures or surgeries, but didn't realize it applies to adverse events or close calls associated with VA care and services. 

Quote

3. DEFINITIONS
a. Adverse Event. Adverse events are untoward diagnostic or therapeutic incidents, iatrogenic injuries, or other occurrences of harm or potential harm directly associated with care or services delivered by VA providers. NOTE: To determine which incidents need to be considered for root cause analysis, consult VHA Handbook 1050.01, VHA National Patient Safety Improvement Handbook, dated March 4, 2011.
...
c. Close Call. A close call is an event or situation that could have resulted in an adverse event but did not, either by chance or through timely intervention. Such events have also been referred to as near miss incidents.

The key word in the adverse event definition is "iatrogenic" which means,  "relating to illness caused my medical examination or treatment".

 

It makes me wonder if these recent situations would qualify as adverse events:

1. For years, the VA gave me meds to treat SC migraines. This year, I had a massive heart attack less than an hour after taking the meds. Followed up with VA cardiology, but they did not take me off the meds so I kept taking them and they made me feel horrible. With help from other members here, I did my own research and connected the dots. When presented to the VA, the departments would not work together, but instead told me to contact the next department. Eventually, I made it back to VA neuro who finally told me I should stop taking it, but only after presenting them with the FDA guidelines for the med.

2. After the heart attack, I had brain fog and cognitive issues. VA neuro did a brain MRI in August 2019, but never told me the results. I found them on my own at myhealth.va.gov and learned there were several significant problems, all of which I had to look up in a medical dictionary. I took the report to a non-VA doc who I trust and their facial expression became grim.

 

I read further in the document. On page 15, it appears they failed to follow their own process of Clinical Disclosure of Adverse Events.

What's ironic is that I filed a heart attack claim and the VA denied it, attributing it to other risk factors. I know the VA is quick to say that nexus statements are handled by the VBA's C&P examiners, but according to this directive this was not a minor issue with no implications for the future. Per the VHA NATIONAL PATIENT SAFETY IMPROVEMENT HANDBOOK, the VA may need to perform root cause analysis. It is a very detailed process that goes beyond the nexus requirements for a C&P. That process falls under the VAMC, not the C&P docs. Coincidentally, I am heading to a VA neuro appointment this afternoon and I am going to inquire about this. Who knows, it might result with a nexus...

 

 

[GBArmy]

Vync We all wish you good health. If we can help, just holler.

[UpToHere]

From a VHA Fact Sheet prepared for my senator: 

A mnemonic for an adverse event v. a medical error:

Adverse event: “Something bad happened.”

Medical error: “Somebody did something wrong.”