What Recourse?

[UpToHere]

Background:
https://www.ethics.va.gov/docs/policy/VHA_Handbook_1004_08_Adverse_Event_Disclosure.pdf

See pA-1, “Institutional Disclosure of Adverse Event Note Template.”

 

https://www.va.gov/oig/54/reports/vaoig-06-02429-62.pdf

See pp2 & 3, “Issue 2,” last 2 paragraphs.

See p7, “Recommendations, #2”:

“Ensure that providers completing disclosures of adverse events in a patient’s medical record explain the claims process and inform them of their right to file an administrative tort claim.”

 

Question:

What recourse is there for a veteran who, A. experienced two adverse events in his VA care (a “delayed diagnosis,” & “an unexpected outcome that necessitated corrective surgery”); none of whose providers, B. disclosed either adverse event; but whose primary care provider, C. noted he kept silent because he was “concerned” veteran might sue VA; and D. veteran lost 40 months of benefits that are now beyond statutory recovery?

[Berta]

VA is supposed to advice veterans of adverse events.

They had to do this, announcing that action  publicly, in the Fayetteville AR  pathologist scandal- that doctor is now incarcerated. I have not looked into yet just how many vets he harmed or killed.

It is all searchable here.

However the VA does not always do that at all as I well know.

In my FTCA case I proved a VA cover up. One VAMC tried to cover up the malpractice at the local VAMC. But they failed. and committed more malpractice,  and I subsequently proved the 1151 and FTCA ,wrongful death)as well as a direct SC death because they malpracticed on two AO conditions my husband had.

You might be beyond "statutory" recovery under FTCA but there is no statutory deadline in filing a Section 1151, 38 USC claim.

WE have plenty of info in FTCA and 1151 here in our FTCA/1151 forum.

The proof requires proof of the adverse event ( event(s)- there were many in my husband's situation) and then

proof you acquired an additional ratable disability solely due to the causes of the adverse events.or the events ,as in my husband's case, caused his death.

I called a lawyer in Arkansas who was at the public VA Briefings. as I was concerned VA would not properly advice  the veterans the pathologist harmed ( or killed)-one was a member here-

but he said they did- and that left it up to each veteran or their next of kin to sue.

The VA AR public affairs person told me  they were also advised of their rights under 1151.

If the VA caused you an additional disability due to their medical errors, you should take action against them.

The Statute of Limits is controlled by state law- the state the malpractice was in. It is usually two years SOL.

Have you checked at your state's web site to see what their Statute of Limits for torts is?

 

 

 

 

[Berta]

PS you do not need motive for FTCA or 1151 but I found a Motive in the Physician's M21-1MR and used that in my case.

The Handbooks also are a good piece of evidence.

[Berta]

Is this better Buck?

I didn't know my font was too small to read.Thanks for letting me know that.

And thanks a lot for contacting the member ,the other day, who contacted me.

I have problems reading some of the downloads here but I use my Zoom thing in the 3 dots at the upper right of my Google access page.

I can make the font bigger than this if needed.

 

 

 

 

Edited June 14, 2020 by Berta

[UpToHere]

Thank you.

The “delayed diagnosis” was a 13-month delayed diagnosis of soft tissue sarcoma.

The “corrective surgery” was an attempt to get tumor-free margins where my VA providers had taken no margins (in addition, I had to undergo radiation therapy, which caused  “bony-hard, deep fibrotic scarring”).

My VAMC’s Tumor Board referred me to civilian care for both corrective surgery & radiation therapy, and told me payment was my responsibility.

I was beyond the deadline to file under F.T.C.A.

Yes, I filed an 1151 (for the residuals of the care).

Seven months after I did, DRO #1 denied “my” 1151 claim for “sarcoma.”

I appealed.

Twenty-five months after I had filed my 1151, DRO #2 upheld my claim, effective with the date of the claim.

Subsequently (about 4 years after my 1151 appeal was upheld), I learned that VA trumpets, providers have an “ethical & legal obligation” to disclose to patients, adverse events in their care, and VA’s “policy” is to refer such patients to the benefits process.

I began asking, everywhere I could think of, why my providers hadn’t done that.

My VAMC’s director wrote me that there were no adverse events in my care which necessitated disclosure, and, if I felt I had been injured in that care, I could file an 1151 claim.

I wrote him a rebuttal: I knew I had been injured, I had filed an 1151 claim, I had been granted 1151 benefits for the same care he told me had been free of adverse events, and that the evidence requirements to establish eligibility for an 1151 claim arising out of VA medical care demonstrated that an adverse event(s) had occurred.

He never answered.

Other VA officials came up with numerous other evasions, or just ignored me.

Which brings me back, full circle, to my original question: What recourse does a veteran have when, because his providers flouted their ethical & legal obligation to disclose adverse events in his care, and ignored VA “policy” to refer him to the benefits process, he lost approximately 40 months’ benefits.

[Buck52]

5 hours ago, UpToHere said:

Background:
https://www.ethics.va.gov/docs/policy/VHA_Handbook_1004_08_Adverse_Event_Disclosure.pdf

See pA-1, “Institutional Disclosure of Adverse Event Note Template.”

 

https://www.va.gov/oig/54/reports/vaoig-06-02429-62.pdf

See pp2 & 3, “Issue 2,” last 2 paragraphs.

See p7, “Recommendations, #2”:

“Ensure that providers completing disclosures of adverse events in a patient’s medical record explain the claims process and inform them of their right to file an administrative tort claim.”

 

Question:

What recourse is there for a veteran who, A. experienced two adverse events in his VA care (a “delayed diagnosis,” & “an unexpected outcome that necessitated corrective surgery”); none of whose providers, B. disclosed either adverse event; but whose primary care provider, C. noted he kept silent because he was “concerned” veteran might sue VA; and D. veteran lost 40 months of benefits that are now beyond statutory recovery?

Wow, 

fairly strong accusation there.

Do you mean you have it in writing  a VA medical  provider mention this in his/her medical reports?

[UpToHere]

3 minutes ago, Buck52 said:

Wow, 

fairly strong accusation there.

Do you mean you have it in writing  a VA medical  provider mention this in his/her medical reports?

In my VAMC medical file.

Yes.