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New Bill grants disclosure info to vets who might have been harmed by VA health Care



In Part 

“Veterans Affairs officials will have to provide basic legal advice to veterans who file medical malpractice claims and provide information on local staffing issues … The new legislation mandates that the department provide ‘notice [to vets] of the importance of securing legal counsel’ and clearly identify the employment status of any individuals involved in the case within a month of a veteran submitting a malpractice claim. VA officials had opposed the idea, saying it creates unnecessary burden on staff.”

Vet, with aid from Congress, forces VA to increase disclosures in malpractice cases | Patrick Malone & Associates P.C. | DC Injury Lawyers - JDSupra

This grew out of the Brian Tally case, info on that available here under a search.

Brian Tally had definitely been malpracticed on at Loma Linda VAMC.

"Tally’s family filed a claim against VA for malpractice, saying that doctors should have ordered more tests after his continued pain. But after more than a year of working with department officials on the claim, they were notified that the primary doctor involved in the case was an independent contractor, not a VA staffer. That meant he [could not pursue a federal action and] had missed state deadlines for filing proper legal claims for his injuries. Officials did not give any reason why providing that critical information took so long.”

His Statute of limits in California was only one year.

It took, per his lawyer, 8 months for the OGC to learn the doctor was not VA employee  but a federal Contractor , who was exempt from FTCA. BY then his Statue of Limits in California had run out.

The VA OGC ignored my FOIA on this, when I pointed out I found doctors at the local VAMC here who were federal contractors, and that took me mere minutes ,using the VA "Our Provider" link.

Federal contractors are liable under Section 1151 38 USC but not under FTCA. That is ,in my opinion, why VA hospitals are filling up with them.






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Yes, this tragedy is consistent with the VA on other things.  "What we dont know will hurt us".   And, often by the time we find out, its too late.  

I would like to know how the VA justifies its position that "The Veteran" has a specific set of deadlines, while the VA has "no limits" on claim process time.  How is that a claimant friendly system?   

I personally, did not get a claim adjuticated for 7 years.  (2002-2009).  

Also, why is it the Veteran does not have access to his VBMS file?  Surely his MILITARY service should qualify him access to this information, his representative does "NOT" have to demonstrate military service to get VBMS access.  Why?  The VA apparently posits "access to the Vets VBMS file" is a security risk.  

While I dont deny the more eyes looking at this, the tighter the security needs to be.  However, remember, Veterans are trusted to input their banking information on ebenefits, but the VA stops short with the Veteran seeing his medical records and cfile?

This is the wolf guarding the henhouse.  The VA is a beneficiary of lost records, and also the Veteran's inability to know EXACTLY, what is in his file.  Yea, he can order a paper one, but that is obsolete by the time he gets it, as new stuff would be added and old deleted.  We need to know what evidence VA has in their possession to decide "which lane" to pick:  "new evidence", "no new evidence", (direct), etc.  Vets are forced to make an uninformed choice, mostly.  We have to guess what is in our cfile, mostly until its too late to do anything about it.  (I got my last 2 cfiles from my attorney, on CD AFTER the BVA decision.  

Once the BVA decision is done, the CAVC "locks" the evidence and will only consider evidence the BVA had in their possession.  Well, of course, we often have no idea what is in our file, the Board could have been looking at another Vets records, for all we know.  "Not every page" has the Vets name and ssn on it.  

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I agree...if the Attorney's And   VA Claims Agent's can view the VBMS.? Why not the VETERAN.   After all its the Veterans Information.

We have our C-File But a lot of Records/Documents & Notes are ''unfortunately'' Missing.

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I agree- every claimant should have access to their VBMS file.

One more point-

The VA does not produce their actual malpractice stats.

For decades they have refuse to honor the NPDB mandate.

That means a medically negligent  VA doctor  can remain at the VA, with no discipline record at NPDB.

Also there is no accountability for any  1151 award that was obviously based on at least one negligent VA doctor ( or federal contractor)

The criteria for VA malpractice is the same under FTCA and 1151.

1.proof of documented malpractice in the Veteran's VA medical records


2.Proof with documented medical evidence that the malpractice /negligence, caused a ratable disability or caused the veteran's death. In most cases but not all- that will take a strong Independent medical opinion.

FTCA cases should be filed by a lawyer unless he claimant is up to speed on FTCA regulations.

A claimant can file both 1151 and FTCA. I sure did.

Those claims must have the same "cause of action" I think that is question 8 on a SF 95.





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On 3/5/2021 at 7:52 AM, Buck52 said:

I agree...if the Attorney's And   VA Claims Agent's can view the VBMS.? Why not the VETERAN.   After all its the Veterans Information.

We have our C-File But a lot of Records/Documents & Notes are ''unfortunately'' Missing.

I agree also. I requested my c-file back in 2019 after my heart attack. The VA finally closed the request in November 2020. I recently inquired and learned it was closed and the requested documents were never sent. It was just marked closed, so I requested it to be reopened. Still waiting. That information would have been very helpful with my heart claim and FTCA if it was provided or made accessibly in a timely manner.

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One of my Bills also passed in the Senate- S 221


"Short Titles as Passed Senate

Department of Veterans Affairs Provider Accountability Act

Short Title(s) as Introduced

Department of Veterans Affairs Provider Accountability Act"

"Official Titles as Introduced

A bill to amend title 38, United States Code, to require the Under Secretary of Health to report major adverse personnel actions involving certain health care employees to the National Practitioner Data Bank and to applicable State licensing boards, and for other purposes."

I have been fighting over this issue for over 20 years. It will hopefully diminish  the high rate of malpractice in the VA Health Care System from VA medical employees.

I have not checked the status of another Bill I have there .

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