Jump to content
  • 0

FTCA info 2021 a must read


Berta

Question

  • HadIt.com Elder

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

 

  • Thanks 3
Link to comment
Share on other sites

Recommended Posts

  • 0
  • HadIt.com Elder

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.

 

 

  • Thanks 1
Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

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 by Vync
Removed inaccuracies
  • Like 1
Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

"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 by Berta
added more
  • Thanks 1
Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

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. 

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.



  • veteranscrisisline-badge-chat-1.gif

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×
×
  • Create New...

Important Information

{terms] and Guidelines