PLEASE ADVISE AS TO HOW RESTRICTED CLAIMS FILES ARE

[Otrgypsy]

My C&P report was so F'd up that the doc has disciplinary exposure with the State medical Board and even a civil action. I am offering her a chance to avoid any complaints. I want to honestly tell her how hard it is for anyone not working on my claim to access the claim file. Please advise.

I would like to be able to tell her that there is a snowball's chance in hell that anyone (particularly her supervisors) on the West Coast will find out she has owned up to and corrected her errors. Is this true? Citations to controlling regs would be great.

Thank you.

[broncovet]

Yes.  I agree with Pacman and Berta.  However, before you plop down money for an IMO to beat a bad c and p, you could try the alternatives I suggested first (explained in my earlier post):

1.  "Ask" the doctor to amend using 38 cfr 1.579 amendment of records "if" there are factual errors in your records.  

2.  Challenge the competency of the examiner "but only if" there is something amiss with your examiner.  

    I provided links in my previous post on how to do this.  

 

Edited March 29, 2021 by broncovet

[Otrgypsy]

Berta, brain damage is not an all or nothing thing. It is very rarely global when the result of injury.  Intellect does not reside where my injury is. My comprehension is still well above average. It shows up most as difficulty organizing, dis-inhibition and putting up with certain people, especially those that tread on my rights, or get in my face.

Perhaps you have a lawyer friend who can explain some basics to you.

28 U.S. Code § 2401 - Time for commencing action against United States

 

Except as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.

(b)

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

(June 25, 1948, ch. 646, 62 Stat. 971; Apr. 25, 1949, ch. 92, § 1, 63 Stat. 62; Pub. L. 86–238, § 1(3), Sept. 8, 1959, 73 Stat. 472; Pub. L. 89–506, § 7, July 18, 1966, 80 Stat. 307; Pub. L. 95–563, § 14(b), Nov. 1, 1978, 92 Stat. 2389; Pub. L. 111–350, § 5(g)(8), Jan. 4, 2011, 124 Stat. 3848.)

[Berta]

https://www.militarytimes.com/news/pentagon-congress/2021/01/06/after-a-years-long-fight-veterans-will-see-new-medical-malpractice-protections/

Brian Tally (I mentioned  above) has had this Bill passed into law- regarding medical  federal contractors who cause injury ( or death) while working at ( but not employed by) VA.

My Bill -S 221, has been passed in the Senate- no update yet in the House.

(No recent action yet on my other malpractice bill with the H VAC)

My bill causes for more accountability from the VA Office of General Counsel on settlements with the USA, like mine under FTCA to be properly 

reported to the NPDB ( National Practitioners Data Bank) so that info on those malpracticing doctors is available to the public as well as disciplinary actions are taken, by state regulations. 

Multiple VA doctors caused my husband's death  and I also proved a cover up had occurred.My case was never reported to the NPDB, so VA just moved those doctors to other VAMCs, where they might have harmed or killed other veterans.

 

 

[Otrgypsy]

No Berta, there is only one SOL for federal tort claims. That is how federal law works. What Tally is saying is that the doc that screwed up was an independent contractor, not a federal employee employee and therefore the CA SOL applied. In my case the lazy doc was staff.

 

[Otrgypsy]

Broncovet,

I know I got long winded in my last post. Over explaining is related to my injury, it's part of the organizing problem. However, I did explain there that I think I may have finally found a SVSR that is willing to do his job and help a vet. I did not cite him to the regs you mentioned but I requested the relief they provide for I have the impression that is how he took it.  I asked that the report be removed from the file or marked so it is clear to anyone who sees it that it can not be relied on. I gave him a ton of factual support. He is taking a long time to respond. I view that as an indication he gets it and is double checking facts in a big file. I am hoping that's the case anyhow.

People here just don't seem to understand that I am just talking about ONE MORE TOOL.

My profession was solving problems. I was more creative than most. One thing I know for a fact is that if you have an important problem and you want it resolved quickly and there are 4 different ways to attack it. You should attack it from all 4 angles., Of course, if people like the VA way of doing one thing half assed and then waiting 4 years to get that changed and then trying another thing and getting a half assed reponse. and fighting over that for 4 or five more years, THEY SHOULD DO THAT, LIKE THE GUY WHO HAS BEEN WORKING ON HIS CLAIM FOR 20 YEARS AND WANTS TO TELL ME THE RIGHT WAY TO DO IT.

AND I ABSOLUTELY GUARANTEE THE VA AND THE DOCTOR WILL PAY 500% MORE ATTENTION TO A COMPLAINT AGAINST A DOCTOR THAN TO A COMPLAINT ABOUT DOING HALF ASSED, INCOMPETENT WORK ON OR FOR A VET. THEY ONLY CARE ABOUT US IN A WEAK, SORT OF GENERAL WAY.

PEOPLE ARE ALSO MISSING THE FACT THAT FOR THE MOST PART I AM JUST TALKING ABOUT AN ADDITIONAL STRATEGY. I GOT EXCITED THE OTHER NIGHT WHEN I REALIZED IT WAS VERY VIABLE. I REALLY DO KNOW BETTER THAN OTHERS HOW THEY WILL RESPOND TO A THREAT OF SUIT. THEN THEY HAVE SOMETHING TO LOOSE . IT MAKES IT PERSONAL. IT GIVES THEM A BIG REASON TO GET IT RIGHT. WHY SHOULD VETS BE THE ONLY ONES WITH SKIN IN THE GAME?

[Berta]

My dead Korean War vet husband  had a Brain tumor, could not recover from the surgery.Died. ( 2 Honorables)

My USMC Vietnam veteran had 100% SC P & t for PTSD and also 100% organic brain trauma from multiple misdiagnosed TIAs and a major misdiagnosed Stroke, and all of that contributed to his death ,plus HBP medical medication error, heart disease never diagnosed and treated as well with DMII from AO that also caused him to die ( This garner a direct SC death Award, to change the prior 1151 death award.( 2 Honorables)

I certainly know you are dealing with a lot-and my husband also never lost his intellect- most of the time, but reacted with anger, and violence, and would have fixed ideas that he wanted me to go along with- such as to buy an $18,000 front end loader (I have a farm) and he made me take it for a brief  trial ride at the dealer's store, because he never intended to use it at all because of his disabilities. He had plans for what I could use it for-I was a livestock farmer.

He was also the first ADA EEOC discrimination lawsuit winner here in NY.

I did all the legal work for that and the EEOC ADA man who called here to tell me he had won,thought I was a lawyer.

My husband could not handle anything like that but would pressure me to get the ADA EEOC complaint done and would threaten to burn all of the work I had done, lots of evidence, many times----on that, for a  reason I cannot fathom.

A neighbor had to conviscate his weapons. as well.

He also had two VA claims, one for higher rating of his PTSD ( 30% at that time) and a very dramatic 1151 claim, which also included that they had malpracticed on his PTSD. ( At that point, after I had some major battles with the VA, )they did give him far better PTSD care with 2 hospitalizations, that included the 21 day inhouse program, where they did extensive anger management. He had completely changed when he came home but he died about 3 weeks later. And also had a medication error- in his meds by mail, that could have killed the veteran those meds were actually for.

I assure you I am very familar with brain traumas of many types and the affects they can have.

I also am very familar with the FTCA process, as I said before, but I cannot advice you more than I already did.

We are in a high wind warning here in NY and my last post might have been lost-----

I see no basis for FTCA at all- and California's SOL is One year-

others will help.