My Attorney Quit Today

[Speaking Out]

My attorney quit today sighting he and I's communication difficulty as the reason, so I owe him nothing, but now I'm stuck trying to get another attorney to take my malpractice case at this late date. If I pursue the medical malpractice under the FTCA they will off set the amount I get for that with my service connected disability pay and then hold my disability pay until it reaches the lump sum. Am I better off dropping the FTCA and applying for my benifits to be raised from the VA. I don't know what to do and it is all hitting me so hard that I can't stop crying or shaking and I need some advice from you on the forum of what I should do. I feel like if I give up that I will never be able to put this behind me because I will always hate the VA, but if I go forward I feel like I am in a lose lose situation. Any thoughts?

[Berta]

You dont need that lawyer and can continue to pursue the FTCA yourself until you can find another lawyer.

It concerns me and I do not understand how they say it will offset your SC comp.

I hope you have filed a Section 1151 claim on this too.

This is the problem with FTCA-

Often a vet is better off filing for the additional disability as secondary, under Sec 1151.

If the VA grants this claim there is no offset under Sec 1151.Unless the FTCA is awarded too.

Offsets are only good when you get a lump sum and invest it wisely- that way in time you can recover from your investment what you lost in the offset.

I did that- and made out OK.

Whether 1151 or FTCA -the evidence required is the same:

1.Positive medical proof of additional disability due solely to the malpractice

2, Postive irrefutable medical proof of the malpractice.

NVLSP in the VBM has significant info on these issues.

Offsets are also discussed within BVA decisions.

[Speaking Out]

I can't find another attorney to take the case this late in the game. I have called every medical malpractice attorney in the yellow pages and have gotten No from all of them...it's not worth enough money for them to get involved and with our discovery date coming up and trial to start in November that makes it worse. I did not file a section 1151. I didn't know about it. The malpractice occured in Nov 03. I filed for my benefits to be increased using my SO the DAV. I explained the situation and my SO filed for an increase for my PTSD which was 10% and my endometriosis which was 0% but SC. He filed VA form 21-22. I got an increase for 10-30%for the PTSD and 0-10% for the endometriosis. He also applied for IU for me, but it was denied. After complications from my medications I got down to 111 lbs and I filed for an increase again in 2005 and was increased to 50% for PTSD and the endometriosis was left at 10%, but they said I could file to reopen the claim when results from two tests were back. Can I still file for the 1151 benefits or is it to late? The way the US Attorney said it would work is that they want to give me 15000 lump sum and get credit for 15000 that they say I have already received in my SC disability payments and then hold my monthly disability pay until the monthly amount adds up to be the amount I got from the tort claim. They are figuring that amount to be 30,000 the 15 lump sum and 15 SC disabiltiy pay. Any thoughts?

[Berta]

They can give you $30,000 and offset that to your comp. I dont know why they would break it up into 2 payments. Just stand firm with the VA lawyer on one check-if you decide to settle.

Your vet rep should have advised Sec 1151 long ago-

It isnt too late to file this-

You can use the settlement papers from the US 0f A as evidence when you file it-

It seems to me that VA would have to make an award under Sec 1151 and then the offset would be withheld on that award and this could retain part of the SC comp but they would combine all this

to SC % less the 1151 % and offset and send you the difference.

NVLSP recommends getting an attorney for FTCA claims due to all of these complex facets that involve other comp issues.

Sec 1151 is separate issues from FTCA.

vet reps dont have a clue as to FTCA but they are supposed to be fully versed in Section 1151 claims.

This also gets the additional disability "as if" service connected. If you die with it contributing your spouse could get DIC.

As it stands with just FTCA award the VA would give your spouse a hard time and he would have to prove the additional FTCA disabilty was SC able under Sec 1151 and then prove that it caused or contributed to your death.

One more reason vets need attorney for vets regs- for claims- this DAV rep should have advised the Sec 1151 claim even instead of the FTCA-as comp for a secondary condition which VA caused-no offset there.

Edited March 5, 2007 by Berta

[LarryJ]

then you turn around and sue your so-called attorney for malpractice/client abandonment............

[Speaking Out]

I am looking into my options, but it is so overwhelming. I can't find another attorney for the FTCA, but I've had offers for legal malpractice against my attorney that is quitting, but at this point thinking of starting something new with another attorney doesn't sound pleasant to me at all. I am going to go to the DAV and ask about the 1151 and IU possibly filing for loss of a creative organ. That last one was suggested to me because the docs can't say the D&C did or did not do any damage to my uterus and they won't be able to say for sure until I get pregnant again and we see how it goes. My husband and I have been trying for 3 years and no luck. I thank all of you for being such a big help through this because right now, I feel so lost and unimportant as though I don't count. I have fought so hard in the past to not feel this way, but now it seems like I am caught in this viscious cycle that won't let me go. Any other thoughts or ideas will be appreciated. Lisa

[Objee]

My attorney quit today sighting he and I's communication difficulty as the reason, so I owe him nothing, but now I'm stuck trying to get another attorney to take my malpractice case at this late date. If I pursue the medical malpractice under the FTCA they will off set the amount I get for that with my service connected disability pay and then hold my disability pay until it reaches the lump sum. Am I better off dropping the FTCA and applying for my benifits to be raised from the VA. I don't know what to do and it is all hitting me so hard that I can't stop crying or shaking and I need some advice from you on the forum of what I should do. I feel like if I give up that I will never be able to put this behind me because I will always hate the VA, but if I go forward I feel like I am in a lose lose situation. Any thoughts?

Inform the court that you are now Pro Se due to attorney abandonment. Ask for a continuance until you can complete the Va filing for an 1151 claim. Tell the court you are having trouble obtaining legal representation for the FTCA complaint but you will diligently pursue representation. Then hope you can gain an 1151 decision before the court demands that you prosecute your FTCA claim. Above all, maintain communications!!

Ralph