FTCA info 2021 a must read

[Berta]

I am again reposting what is already here on FTCA-I do not intent to repeat this info again.

FTCA regulations have not changed since I FTCAed the VA decades ago.

This first paragraph ,current to the VA web site, contains everything a claimant must prove:

"Office of General Counsel
 
Claims Under the Federal Tort Claims Act
The Federal Tort Claims Act prescribes a uniform procedure for handling of claims against the United States, for money damages only, on account of damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of a Government employee while acting within the scope of his or her office or employment, under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred.

A tort claim against the United States, based on a negligent or wrongful act or omission of an employee of the Department of Veterans Affairs acting within the scope of his or her employment, may be filed by the injured person or his or her legal representative usingStandard Form 95, Claim for Damage, Injury, or Death; however, use of the SF 95 is not mandatory as long as the following requirements are met: 1) detailed allegation; 2) sum certain (total dollar amount claimed in damages); and 3) signature of appropriate claimant.  A tort claim must be received by the proper Agency within two years of the date the claim accrued. 

Once you have completed the claim form and ensured it complies with the above, please mail to the following address:

Department of Veterans Affairs
Office of General Counsel
Torts Law Group
810 Vermont Avenue, NW
Washington, DC 20420
If you have any questions, please contact the Torts Law Group at (202) 461-4900.  VA Attorneys and support staffing handling Federal tort claims work for the Federal government and cannot provide legal advice with respect to the filing and/or adjudication of tort claims against VA or the United States."

https://www.va.gov/ogc/ftca.asp

The claim hinges on proof of one or more incidents of :

"damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of a Government employee while acting within the scope of his or her office or " etc as in above.

Loss of property is like if a VA Food truck bringing meals from a VA Kitchen to the main VAMC Hospital hit your car on VAMC property, and you were not at fault.

Personal injury is when you have incurred a disability, that a negligent VA doctor did not diagnose or treat in a timely manner,and it got worse, or that a VA doctor did diagnose and  treat but gave you the wrong diagnosis and inappropriate  medical care and/or meds, for the condition, in acts or omissions of acts that  directly caused the additional disability.

Wrongful death also depends on those same factors.

You must prove, with VA medical records, that you were actually harmed by VA health care.Or your survivor must prove you died directly from negligent VA health care. That is best done by getting a strong detailed opinion from an independent doctor with expertise in the field of the veteran's full disability profile, who would give a full review their medical records, and also the death certificate and autopsy, if death occurred,

Most  veterans or their survivors would need a medical background to be able to properly assess the entire medical record.

With a strong IMO/IME, there might not be any need to even get a lawyer.

If a lawyer is needed, however, they would be very willing to take the case, with a strong IMO/IME in support of it.

There are malpractice lawyers who handle FTCA cases with the VA, on the internet.

 Lawyers were not allowed to advertise their specialties, many years ago, and at least 20 lawyers here in NY said I could never succeed. None could recommend any lawyer with malpractice experience.I only found one malpractice lawyer at some point here in NY- but I was already negotiating with OGC , as the FTCA claim had been proven, so I never called him back.

You do not need to prove a motive.I did prove a motive. My proof was in VA Physicians guidelines,issued and  dated the same year they began to malpractice on my husband.

There is no place for extemporaneous non probative detail or statements  in a FTCA claim.

It relies solely on documented medical facts.

If a 1151 claim is filed as well, that claim should be based on the exact same cause of action on the SF 95.

ALSO, you must determine if the negligent doctor actually is employed by the VA. Check their name on the VA "Providers list" that is searchable here.

In my case, every doctor I named did wok for the VA.

A doctor at VA treated me under CHAMPVA long ago and I was stunned to learn ( he had been at the VAMC for decades)that he was not a VA employee but a federal contractor, thus not liable under FTCA. 

 

 

 

 

 

 

 

 

 

 

ALSO

 

[Berta]

I need to add-the OGC is still working for the most part virtually-

I filed a complaint against an accredited agent months ago, and had to make all of my submissions ( 3) it was extensive, with evidence, as a pdf and they accepted it at a specific email address at the OGC.

I posted here somewhere recently some contact info from them at their web site.

Their main VA OGC web site advises that they are still backlogged due to COVID. 

I am assuming an SF 95 would have to be sent to them via email pdf.

The email would be dated if the SOL is looming. I suggest calling them or emailing them first.

 

 

[Vync]

Thanks @Berta, this information helped answer a number of additional questions I was considering asking.

The only question I have is can the SF-95 be submitted first and all the evidence submitted later? Or should it all be submitted simultaneously?

As info, the VA Providers list can be found at: https://www.accesstocare.va.gov/ourproviders
It is very important to understand that this only contains information about current providers. If a provider is no longer employed at the VA, they may no longer appear on that list. However, the list will not reflect the change the moment they are gone. It may take some time for the databases to sync and reflect the changes.

Additionally, I found a publicly accessible guide at a lawyer's web site which might be useful to others: https://www.tullylegal.com/wp-content/uploads/Guide_to_Suing_the_Department_of_Veterans_Affairs.pdf
  Please note that this document was initially posted in 2010 and has not been updated, so do not assume it is up to date. It includes a disclaimer stating it is not intended to imply legal representation. I did read through it and found it mirrors much of what Berta posted here. It breaks down examples of the standards, requirements, damages, etc... It also includes some references to a number of legal cases where someone prevailed against the government via the FTCA. Use at your own risk and consider competent legal counsel before using any of it's guidance.

Berta indicated that many lawyers said she could not win an FTCA. After contacting a dozen law firms, I was either told the same thing or was told that they do not work FTCA's (even though their web site said they did). When asked, they said that they would not take my case unless I was mortally injured or died. The moment I told them I eventually returned to work, they closed the door. On the bright side, the VA did recently grant SC for the issue. However, FTCA standards appear to be tighter. I am not giving up and plan to file anyway.

Edited March 31, 2021 by Vync
Removed inaccuracies

[Berta]

"Berta indicated that many malpractice lawyers said she could not win an FTCA based on her circumstances."

No, I contacted many lawyers ( none of them were malpractice lawyers and they knew of no malpractice lawyer in NY because lawyers in those days ( the 1990s)were not allowed to advertise their areas of expertise.

They would not even be willing to see my evidence.Two of them were in the county law library where I had to do a lot of research- no real internet then, and heard another lawyer I knew personally due to another matter,  ask me how I made out on the FTCA and I told him I won. I saw their shock and they started to ask him about my case when I left the law library.

I just said Piss on them and did it all myself. And I did my own lay medical opinion, with evidence from my husband's VA med recs, death cert and autopsy.

It had nothing to do with my "circumstances".

"The only question I have is can the SF-95 be submitted first and all the evidence submitted later? Or should it all be submitted simultaneously?"

I sent evidence with my SF 95 and then sent additional evidence at some point shortly after that.

My original SF95 went to the Regional Counsel. within a few months he called me to begin negotiations, because he had a Peer Review done and that doctor ( a VA Cardiologist) agreed with my charges, then he 'disappeared, the Peer doctor disappeared, and so did the ZPeer Review report.The RC and th doctor had left VA to retire-rather suddenly but I called them and they assured me that Peer Report was on their PC computers at VA and in my files.

I found it years later at the very bottom of the C file I had requested, when I reopened my claim for direct SC death.and I used it for my AO IHD claim.

Some of these lawyers -whether malpractice lawyers or not , have a triage team that often never even gives the lawyer the actual contact info.

Best to call the lawyers directly or write to them or send them a fax.

If they do not see a lot of cash potential however, they will not take the case.

You might do better under a 1151 filing ( templates at hadit for that), and get an IMO/IME that is strong enough to succeed.

I won under 1151 too, with the same evidence.

 "On the bright side, the VA did recently grant SC for the issue. "

That is great. I am fighting over VA OGC Pres Op #08-97,that says a veteran or survivor, can be awarded both direct SC and 1151 SC as well-for the same disability , as this was the intent of Congress. it is at the OGC web site.

Edited March 31, 2021 by Berta
added more

[Vync]

I saw the same here. Of the law firms I contacted, their intake/triage staff never once had any interest in seeing any of my evidence. Being 100% already can have its disadvantages.

The VA is already in possession of all of my evidence. I will be referring to it specifically by date and doctor, with key excerpts they can confirm. Because it dates back to 2014, if I sent it in verbatim, it would approach 500+ pages.

I read the other posts from Carlie and Tbird talking about peer review. I am glad they do that. At least the peer is supposed to be credentialed in the field. It's not like sending a supplemental claim in and the staff is relatively clueless and refuses to be thorough.
  It stinks that they disappeared your peer reviews and other documentation. In the Army, they called that "Friday filing" and anyone caught doing that was disciplined (at least in my unit).

 

21 minutes ago, Berta said:

You might do better under a 1151 filing ( templates at hadit for that), and get an IMO/IME that is strong enough to succeed.

I won under 1151 too, with the same evidence.

 "On the bright side, the VA did recently grant SC for the issue. "

That is great. I am fighting over VA OGC Pres Op #08-97,that says a veteran or survivor, can be awarded both direct SC and 1151 SC as well-for the same disability , as this was the intent of Congress. it is at the OGC web site.

I am definitely considering this, especially since I ended up winning my SC via a "more likely than not" IMO that was via HLR review. It would be interesting to see what the VA says. They have previously told me that it's either SC or 1151, but not both. We'll see... Wondering if I should go ahead and file for that or wait to see what happens with the FTCA.
  I realize that there can be some sort of offset if an FTCA is also won, but I will have to research that later. 

[Berta]

BUMPING it up and adding basic overview of FTCA

The VA saves LIVES every day!!!!! I have no doubt about that fact.
However they also have harmed veterans and/or caused the veteran’s death, due to their incompetence, in too many cases.
My bill S 221 is to try to prevent future malpractice. I expect the House will unanimously pass the bill as the Senate already has, but with all things VA, I don’t know.There are more bills like it, regarding the work of a veteran I know, whose malpractice came at the hands of a federal contractor and they are exempt from FTCA. The whole 9 yards of that situation is here- the Brain Tally case. Available here under a search.
Medical errors happen at private hospital as well as at the VA.
Sometimes a medical professional at VA will correct what appears to be the wrong treatment or medication course for a veteran VA patient, but that does not happen often at all. The horrible Fayette AR malpractice case  (searchable here) caused me to call the White House immediately because their director at an on line public meeting wanted to keep this incident quiet and local. I asked the WH to tell the President and also the VA secretary because they were totally unaware of this horrible event.
In this case many VA medical workers had complained to the superiors about the impaired pathologist- they knew he was so messed up,that he surely was not reading the pathology reports correctly and I believe he caused the death of Stretch ( Mike Sasser,long time  member of hadit and Mike  (”Stretch”)even developed our original SVR radio studio shows on line, which were very popular with veterans in those days. He even paid for the 800# so they could call in to us on the live show, without a phone bill charge.
I am a FTCAer I also won 1151. The VA caused my husband’s death long ago.
The VBM, at that time had very limited info on FTCA.1995.The 2020=2021 Edition has more info but the FTCA is basically the same today as it was in 1995.
NVLSP who writes the VBM always suggests getting a lawyer to handle this type of charge against the VA.
Also these claim most of the time if not all of the time require  a strong IMO/IME from a doctor with expertise in the field of the malpracticed disability or 
With expertise in determining the cause of death as reflected by the documented medical  history of the VA patient in their lifetime.
IMO/IME doctor were not on the internet in those days.I could not find one.
Twenty lawyers in NY told me I could not win the case, and I could not sue the US of A..and none of them were interested in my evidence,which appeared very soon in the medical records I obtained from the VAMC.
My long point here is that anyone can file a SF 95 and/or a 38 USC Section 1151 claim.
I had to do all of the medical and legal work myself. And I won. BUT I strongly suggest that you definitely try to get a lawyer for any FTCA case you feel you have. FTCA has a usual two year Statute of Limits but some states have shorter SOLs, so you need to check what state the VA malpractice occurred in to make sure your SF 95 is filed on time, per their SOL.  Under a search I have posted the SF95 form link and more info on that.
It cost me less than probably 100 bucks, for priority mail of my SF 95 and subsequent evidence, and Xerox copies as PCs had no printers in those days.
I also made trips to the local law library and bought books on cardiology and neurology as well- to make sure my lay medical opinions were sound.
If you have any legal background ( I had some) and/or medical background, or are willing to take the time to really study your Med recs, and understand the Acronyms, EKG, MRIs, X rays, and blood chem rrults, etc etc etc, you are certainly allowed to file and pursue FTCA yourself.
But I do NOT recommend doing that.
FTCA requires two basic criterias:
.Documented proof from your VA medical records that malpractice.negligence occurred, and
Documented proof that the malpractice/negligence caused you to have a ratable disability ( or more than one) that was solely incurred due to the VA malpractice/negligence.
If theresult of VA malpractice/negligence has caused the death of a veteran in the VA health Care system, your survivor can charge the VA with causing your death, but most survivors will need a strong IMO and also a lawyer.
I suggest the survivor should also file a Section 1151 claim, but the lawyer should prepare the SF 95, My 1151 claim was as a substitute for my husband’s pending 1151 claim in his lifetime. The charges he made under 1151 were the same charges I made for the 1151 claim, and on the SF 95 I prepared.

Also by having a lawyer you will not meet up the VA’s MF----I hope.
VAMF :the mysterious force that removes pertinent and high probative evidence from your medical records and C file ( then when that denied the claim, the MF puts those documents back in the file.
The Regional Counsel VA ( now called District Counsel) wanted to settle with me within a few months of getting my SF 95 and my evidence.
A Peer review had been done that supported my charges.
Then the Peer Review doctor, the RC,and the Peer review itself all disappeared from the VA.
Long story I found them all and used the Peer review ( which OMLA VA tld me had “Never existed”) and used it for my successful AO IHD death claim under Nehmer.
Some of my original post  was within the info from Carlie:
“The VA is supposed to honor a NPDB mandated agreement and report the settlement and those doctors charged with the settlement to the National Practitioners Data Bank.This list in turn goes to every state Department of Health and Human Services to report on their web sites under disciplined doctors in their state as public knowledge. VA doctors are not exempt.”
That is what my Bill S 221 is about.Passed by the Senateunanimously  in January, now in committee, and my whole church is praying for it to pass unanimously in the house.
There is more that came from me in the post Carlie made, but I will have to add it later.
It is critical to get a copy of the VA medical records, if you think malpractice occurred.
Then if you get those records reviewed by a IMO/IME doctor with expertise to opine on the issue, and their opinion -which might be costly, if it supports a malpractice and/or 1161 claim, then with the IMO/IME result you should have no problems finding a malpractice lawyer on the internet.There are plenty of them these days.

 

[Vync]

@BertaI saw your other topic about the VA delays with mailing correspondence to veterans and wondered if the same might apply to FTCA's. I moved to a new address earlier this year and changed my address via va.gov. However, I recently learned that CHAMPVA does not use that for address changes and needed to be updated directly. I called the 202 number from your original post to check the status of my FTCA claim. They said it was still pending and updated my address in their system. They did say that they had about a month of a delay due to COVID procedural changes, but have still been working claims in the meantime.