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ruby

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Question

I had surgery 3 yrs ago for lung ca during the surgery I became very dry and a clot occluded my descending aorta 100%. Which caused acute bilateral claudication.  I never knew why I had severe leg pain and couldn’t walk for 2 yrs after surgery when a NP slipped and said they let you get to dry.  After surgery when they woke me up in surgery I was screaming in severe pain to the point they  X-rayed my hips thinking I had a spontaneous hip fracture.  My family heard me screaming when they called her to tell her I was ok.

since I was never told the reason for the pain for 2 years can I still file FTCA claim or 1151 claim.

Thanks

 

 

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Posted (edited)

Order and get a copy of your medical records and File. 

Dont expect VA to "help you" get an 1151 claim...Im not sure the Duty to Assist applies.

 No, the doctor does not have to come into your room and say, "We messed up and let you get too dry, so you should file an 1151 claim", at least, not according to the regulations.  

Here are the regulations for 1151's:

https://www.law.cornell.edu/uscode/text/38/1151

I read "nothing" in that regulation that says "you must file for 1151" within 2 years of your injury, but read it yourself.  

I will "speculate" that waiting longer wont help you, in no small part because VA has a tendency to "lose" medical records that costs them money.  

You are almost certainly going to need another doctor to review your records and state something to the effect that VA doctors were negligent and caused you to get to dry, because I doubt VA docs will rush out and admit their mistakes.  

Now, Berta has mentioned there is a huge difference as to whether this is a "doctor employed by VA" or, one of the many "contractor docs" which perform treatments for VA.  I suggest you try to find that out (whether the doc who worked on you "actually was a VA emploee" or a contractor.)

That will likely take a little research, because, just because a guy in a white coat with a stethoscope and name tag comes and treats you at a VA hospital, does not guarantee this doc was a VA employee.  He could have been a contractor.  

 

Edited by broncovet

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 Just my opinion or speculation  but Seems like I remember Ms berta saying  a 1151 claim must be filed within 2 years or appealed unless under  a special circumstance situation?

and VA Dr can't be sued because they work for the VA , Now however if an Outside Dr comes in that's' a totally different situations ,but these VA Dr's have a contract with the VA  AND are under VA Protection  as I understand Ms Berta

This is a good Question for Ms Berta to Answer .

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Posted (edited)

The statute of limits for most FTCA cases is 2 years ( in California it is only one year).Your state web site would have that info as to their FTCA Statute of Limits.

That ,as well as if the doctor' was not a VA employee. They can be searched for here :

https://www.accesstocare.va.gov/ourproviders

VA Providers, as federal contractors ,are not liable under FTCA. I had posted info here about two years ago from the Brian Tally case. Tally told me personally that his 1151 was denied because the doctor who malpracticed on him was not a VA employee. He was wrong and finally told me the actual facts - he got 100% P & T under 1151, and also a "litigation risk settlement from the OGC" which they have not responded to my FOIA on yet-

I wonder where that 'litigation risk "money comes from.And how many times the OGC has paid it.

 

Whether FTCA or Section 1151/ or both (  I filed  both)-the VA fights these claims very aggressively and in my case, they even attempted a cover up. And they lost.

Broncovet is correct.

"You are almost certainly going to need another doctor to review your records and state something to the effect that VA doctors were negligent and caused you to get to dry, because I doubt VA docs will rush out and admit their mistakes. "   And as he said you need a copy of all of your VA medical records. 

There is no Statute of Limits on any 1151 claim. I won one in 2015, as an accrued claim over my husband death ( by then he had been dead for 21 years),one in 2012 and one in 1998. An additional malpractice claim I filed in 2003 , (I filed for direct SC death due to untreated DMII due to AO )and won that - that claim ,unlike my past issues had 3 IMO s.

If you are out of the Statute of limits for FTCA, you can file 1151- I don't know if they have a  specific form for 1151 claims yet or not-you might have to use the 21-534 EZ on that.

If malpractice occurred it will be revealed in your medical records.There are many reasons for this type of disability,so you would need an expert in the field of what I believe to be a cardiology situation. However Dr Bash did 2 IMos as a Neuro-radiologist for my DMII AO death claim.His IMos showed he had dealt with thousands of MRIs done on diabetics and could give a full medical rationale, that ruled out any other etiology but for the DMII due to AO.

Since the VA never diagnosed and treated this disability, I made sure my evidence was solid before I paid his fee, with a cover letter, that directed him to specific tabbed records in the stack.

This might be a manifestation of PAD, in your case -due to any heart disease you might have.I am not a doctor- but I studied cardiology to succeed in my FTCA case.And Neurology and endocrinology to succeed in the DMII claim.

This shows what I mean:

https://www.mayoclinic.org/diseases-conditions/claudication/symptoms-causes/syc-20370952

It is possible that undiagnosed PAD ( peripheral arterial disease) caused the claudication right after the surgery.

But that would depend on a real doctor, who can prepare an IMO/IME with the criteria in our IMO forum here.

If you have SC heart disease a claim could be filed not only under 1151 but also under secondary, when a IMO doctor determines the cause of the claudication.

Dr Bash not only supported my DMII AO contentions and evidence with two other diagnoses- that I have never claimed- Peripheral neuropathy and PAD. I was happy with the direct SC DIC award and have other issues with the VA ,on a different basis.

Buck said:

"Just my opinion or speculation  but Seems like I remember Ms berta saying  a 1151 claim must be filed within 2 years or appealed unless under  a special circumstance situation?" 

There is no Statute of limits to 1151 claims. FTCA SOL is usually 2 years.

"and VA Dr can't be sued because they work for the VA , Now however if an Outside Dr comes in that's' a totally different situations ,but these VA Dr's have a contract with the VA  AND are under VA Protection  as I understand Ms Berta"

The VA is replacing the multiple doctors and their  medical professionals they have lost over the years with these federal contractors. If you read one of recent post on malpractice, I was responsible for the bill( S221) that the Senate just passed unanimously. It is geared to prevent more malpractice by the VA . Also if Brian Tally's Bill goes through, that will give these contractors more VA liability. Also my malpractice Bill, was with Congressman Roe for many months but apparently he is leaving Congress, so I have to find another sponsor to handle it.

The contractors are from the same outfits who prepare those lousy C & P exams, QTC, LHI, and VES, that many of you get. One of the contractors web site even touts the "low" liability factor these medical people have,with their firm, as they seek others to join them and potentially work at VAMCs.

VA saves lives every day-they have some highly trained and dedicated individuals in every aspect of their health care.

But a lot of those excellent medical care people are leaving the VA. Sometimes I think it is because they see too much lousy care. It took me 8 months to find a Neuro whose diabetes diagnosis had been crossed out in my husband med records.Most of his records were handwritten and I had skimmed over the entry many times- until I blew it up and could determine what it said before it was crossed out- and that brought back to me a significant memory-something my husband told me a VA doctor had just said to him-while he was hospitalized, in 1992) and I was able to build my whole DMII claim around that crossed out entry.

I found him,the DM Neuro,  in private practice, that was not too easy because it was hard for me to even  read his name in the records, he had gotten fed up with the VA and provided a brief free IMO for me, and he was,in fact , the only doctor at Syracuse VAMC in my husband's treatment team ,who knew what he was doing .

IMO/IMEs are a major investment in a claim that might only be awarded due to a strong IMO/IME. I could not find any doctor when my husband died to do an IMO/IME so I had to do all of the medical work myself- and ll of the legal work- no lawyer would help me.

As someone said here recently ,getting an IMO/IME is a personal decision and not all independent medical opinions can help some claims.

 

 

 

 

 

 

 

 

Edited by Berta

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