Veteran dies after surgery

[ROMAD]

Just a question I am trying to get an answer to. I am working with a widow of a Vet that went in for Prostatectomy at the VA hospital. During the surgery he suffered Cardiac Arrest. He recovered from that and 10 days later died of Cardiac Arrest. Would this be a valid approach to filing an 1151? The doctor came out after the surgery and told the wife the reason the surgery took twice as long was because he was a big man and it took longer than normal. This is also the point he mentioned to the wife and adult daughter that his heart stopped. If this was due to the surgery, would that make his death service connected?

 

 

[broncovet]

Good questions and that probably can only be answered after a review of the file.  

An 1151 claim may not make a lot of sense, because deceased Veterans can not collect SC compenastion benefits.  

All is not lost, tho.  If the VA docs made one or more errors which led to the Veterans death, then you may be able to sue for wrongful death under FTCA.  

His widow may also be eligible for DIC, but that too, would depend on the medical evidence.  

[Vync]

Good info from @broncovet. 

The situation sounds very familiar. Last year, I had a heart attack which I believe was linked to medication prescribed by the VA. I had several risk factors that should have raised some red flags for some additional tests, but the VA never did them. 

I did some research.

1151's = SC, but I was already 100% P&T, so that would not help.

Federal Tort Claims Act (FTCA). That's when you get harmed by the VA and seek payment for negligence, etc... You have two years from the time the incident occurred to file for this. I think it is SF-95 that is filed. The VA lawyers have six months to investigate. If they investigation is not complete within six months, you can either choose to go ahead and get a lawyer to sue or just wait for them to finish.

I decided to ask the VAMC patient advocate to perform an internal investigation first. I figure this will take a few months. I still have well over a year left in the FTCA window.

 

[broncovet]

Vync...

You posted:

Quote

1151's = SC, but I was already 100% P&T, so that would not help.

This is not true according to a post Berta made some time ago (if memory serves me well, and that is a big "if")

You can theoretically collect 100 percent SC and up to 100 percent for 1151.  

If I recall, Berta is litigating this "as we write".  Maybe she will chime in.  Checking the VA website, getting both is not impossible there:

https://www.va.gov/disability/eligibility/special-claims/1151-claims-title-38/

 

 

[john999]

Berta knows more than 95% of lawyers about 1151   claims.  She has beaten them up so bad they turn white when they see her coming.  If Berta could give you some tips that would help.  She is very busy but she knows her stuff.

[john999]

Also if you suspect malpractice get an autopsy.   VA does not do them for free I understand.  They bury their mistakes.

[Berta]

John999 , that is the best advice of all, if a veteran dies and the family questions why they died.

In some cases the VA has done autopsies. Was one done by VA or the Medical examiner's office?

Here in NY autopsies are free if the deceased is an organ donor.

I imagine they could be costly- and must be done ASAP after death.

The widow needs to get a copy of the veteran's C file, and all VA medical records.

It is possible that there were known risks involved for this veteran, that the VA made him aware of.

But there could have been a documented "adverse event" in the record, that meant something went wrong.

Broncover said:

"You can theoretically collect 100 percent SC and up to 100 percent for 1151. "

That is how I interpret OGC Prec Op 08-97. No one has ever challenged the VA with that Prec Op before.

It is part of 2 CUEs I have pending and also an audit review, as evidence.

I just answered a similar question here last week- 

The widow could file a FTCA case and/or a Section 1151 claim.

But the only thing that warrants awards on wrongful death ( if that in fact is what happened) , is Strong medical evidence of malpractice that only a real doctor (probably a cardiologist)can determine ( meaning she will need an IMO and that might be very costly.)

I know families who never wanted autopsys done, but wondered for years (and still do wonder) what really caused their family member's death.

An autopsy might have been done...in this case?

The autopsy on my husband's death was the most important evidence I had to prove they (VA)caused his death,when compared to his VA medical records.

 

 

 

 

 

 

[Vync]

@Berta and @broncovet, Please tell me if I am interpreting this correctly.

I looked up VAOPGCPREC 08-97 to see what it says:

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000043673/VAOPGCPREC-08-97,-Feb-11,-1997,-Applicability-of-38-CFR-3.310-To-Disability-Proximately-Due-To-Or-The-Result-Of-Disability-Covered-By-38-U.S.C.-1151

Quote

4.  Although an injury compensated under section 1151 is not a “service-connected” injury within the literal meaning of 38 C.F.R. § 3.310, section 1151 requires VA to pay compensation for disabilities under section 1151 in the same manner as if the disability were service-connected.  We have previously concluded that the language and history of section 1151 reflect a congressional intent that all disability and death compensation and dependency and indemnity compensation (DIC) benefits payable for service-connected disability shall also be payable for disability within the scope of section 1151. ...
...

6.  We have construed section 1151 to authorize payment of all disability compensation and DIC benefits under chapters 11 and 13 of title 38, United States Code, including compensation and DIC benefits under those chapters which may be considered “ancillary” benefits because they are payable in addition to the general compensation benefits authorized by 38 U.S.C. §§ 1110 and 1131 or the general DIC benefits under 38 U.S.C. § 1310.  That construction implements the plain language of section 1151, which authorizes payment of “disability or death compensation under [chapter 11] and dependency and indemnity compensation under chapter 13” and is not limited to the benefits provided in the general compensation and DIC provisions of 38 U.S.C. §§ 1110, 1131, and 1310.

HELD:

Disability compensation may be paid, pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151.

I'm no legal expert, but the wording in paragraph 6 appears to state that a veteran can get compensation/DIC plus additional payments via 1151.

 

 

 

 

[Berta]

That is how I read this as well.

In around 1998=-1999 I was talking to a lawyer at NVLSP and he said that ( we had discussed my 1151 DIC issue) if I ever proved my husband also had direct SC issues ,that contributed to his death ,they would have to award ALL of the DIC for each.

I had no idea what he meant- but one day I found OGC Pres Op 08-97 and that seems to mean what he meant.

I believe the initial grant for 1151 100% P & T ,in my Nehmer award was due to this Prec Op.

 

[Berta]

ROMAD, when I thought I replied to a similar claim here, actually it was to your other post:

https://community.hadit.com/topic/77497-veteran-dies-10-days-after-prostate-surgery/

You had given more info there and I was able to reply with a little more detail.

Can the widow  join us here?