LEgal Representation for FCTA against VA Malporactice community care providers

[mayertucker]

I apologize if this is a long one.  It being so long is one of the reasons I am having difficulties finding a way forward.

I am needing help in doing a FTCA or a lawyer who can do one or at least how to figure out damages. 

About 8-9 years ago symptoms started.  VA did basic testing which didn't definitely show a condition, but various abnormal test results were found and disregarded, ignored, or treated.  Started seeing non VA care and was diagnosed with small fiber/autonomic neuropathy caused by an unknown autoimmune illness in 2021.  VA was sent my diagnosis in 2021.  In 2020 was diagnosed by VA mental health with a somatic disorder since no medical cause could be found for my symptoms (disregarding previous abnormalities etc).  My health continued to go downhill.  In 2022 had first eye surgery (that is more and more looking to be caused by my autoimmune disorder) which double vision came back and was worse).  Was told to do 2nd surgery to fix it.  Double vision coming back again.  Asked to see VA mental health marriage counselor (who blamed the issues on my somatic disorder (learned about it and its affect on my care) and me for my mental health issues causing serious suicidal ideation.  Instead reached out to community mental health and got a therapist who told me to get the somatic disorder removed from my records and referred me to current immunologist.  Talked to my current community care neurologist about the somatic disorder who wrote a letter to the VA asking for it to be removed as it affected my care and getting diagnosed/treated. 

Current immunologist within  4 months has found evidence of what autoimmune disorder I have and within the next 2 months will be starting me on a treatment. 

Asked VA to correct my records to include small fiber/autonomic neuropthy and make sure all records removed the somatic disorder since they only removed it from my problem list.  Notified and sent PCP notes from immunologist.  About a week later find somatization disorder re-added to my medical record (justification given they had no other diagnosis, when they had one since 2021) and nothing about the small fiber/autonomic neuropathy.  See patient advocate with concerns and have an unproductive phone call with PCP's nurse.  File congressional complaint with issues.  2 weeks later somatic disorder is once again removed, PCP changed, recorded call (CO is one party consent state) where VA congressional liasion states somatic disorder was put back on because of no other diagnosis. 

I am no longer suicidal, and actually hopeful that at least some of my symptoms will be resolving in the near future.  I still have many deliberating symptoms pretty much daily in the mean time. 

VERY LONG POST

I am needing help in doing a FTCA or a lawyer who can do one or at least how to figure out damages. 

Backgound Info:  Currently 90% TDIU P&T SC (PTSD 50% /Migraines 50% (residuals of TBI)/Bilateral Flat Feet 50%/Knee Issue 10%/Keratoconus 0%/Nephrolithiasis 0%/Right Shin splints 10%/).  Those are the non-autoimmune issues.  Migraines and nephrolithiasis potentially could be part of my autoimmune stuff but maybe excluded. 

PTSD is from being married to a diagnosed Sociopathic/Psychotic/Bipolar wife with a heavy meth addiction.  Partly from the abuse I got (trying to protect my son) as well as the blame of my command, judicial system being a male victim of DV (basically on my own no one believes it happened).  Finally was granted SC in 2021 when got a copy of PMO report where she had smashed a glass mug against my head (I hadnt been physical or verbal with her), and I was made to stay in the barracks and away from her and my son and told I was the issue.

VA diagnoses (VA problem list): My service connected conditions, until August of this year Somatization disorder (misdiagnosis/re-added 12/27/23/re-removed 1/16/24. 

Community Care Diagnoses:  Small fiber neuropathy added 1/16/2024 (diagnosed by community care in 2021 and sent to them then (so was part of my records). 

New Diagnosis:  Idiopathic Progressive Neuropathy (temp diagnosis to get me started on IVIG), In Novemeber had a moderate positive for Anti-nt5c1a (Inclusion Body Myosistis, Lupus, a couple of other autoimmune disorders).  My immunologist said I have definite autoimmune dysfunction and an autoimmune disorder that is attacking my muscles. He wants me to see his neuromuscular/neurologist doc in his clinic and said my diagnosis will change to be more specific once those appts and more testing is done.  

I do have pending claims for the autoimmune stuff (C&P examiners said I was a textbook case of the chronic multi-symptom undiagnosed illness and was going to write the report saying that it should be service connected.  Another C&P examiner said that she went through my 2k pages of health records and counted at least 17 issues that were never followed up on or ignored over the almost decade and she would be writing that it to should be service connected.  So, I don't think I need help on that portion.

In 2014 I started having daily 7-10 pain level headaches.  My PCP care at the time sent me to a VA neurologist who did a bunch of testing.  He did do basic autoimmune disorder tests which were negative.   I did have some abnormal results (protein in cereberal spinal fluid, a syphillis test that was first mildly positive, then positive, then mildly positive, then negative, CSF was negative, a couple of more).  The VA sent my stuff to infectious diseases who said no syphyllis.  My neurologist said he couldn't figure it out and wanted to send me to Denver to see their neurologists.  The neurologist there saw I had a PTSD diagnosis and said "just go to therapy and you'll start to feel better.  During this time, I developed the double vision (separate from my keratoconus), kidney/urinary issues, dizziness/ligheadness, muscle twitches, the neuropathy symptoms, brain fog, trouble speaking, left side facial numbness/palsy, iron deficient anemia.

My PCP sent my records for review with a VA hematologist who re-stated some of the abnormal stuff found and said the workup needs to be done and might not find anything but it is inexcusable with what was already had if something is found later.  She treated me for the iron deficient anemia and my iron levels returned to normal but my hemoglobin was still low.  She sent my blood to Denver again for more testing but then dropped out of my care and I have no idea what the results of that testing were/if it was completed.  When I asked my PCP about my hemoglobin and some of the abnormal results she said "thats just my normal".

She did send me to non-VA neurologists and VA's WRIISC (made some recomendations where some were implemented and others werne't, was also told by their gulf war illness specialist I need to let go of my buddies that died in the war so I could get over the PTSD, I was never in war but the in between times and wasnt why I had PTSD).

I also started to have GI issues lots of diarrhea, constipation, oily foul stools, bloating, gas buildup.  Was tested for H. Pylori and treated, was better for about 3 months.  Then came back with a vengeance.  Was sent to VA GI first GI doc said was somatic.  2nd GI doc thought was SIBO had me tested (positive) then started treatment.  First treatment didn't help so she wanted to use different antibodies.  Helped for about 3 months then back at it.  She was going to do a 3rd round with different antibiotics then disappeared.  3 months later I called and was told she no longer works at the VA so they sent me to community care. 

I also started seeing another community care neurologist and he thought I had the small fiber/autonomic neuropathy caused by an autoimmune disorder.  He tested me for it (was negative 1st skin biopsy (right side) as well as repeated the basic autoimmune testing.  He decided to do a 2nd skin biopsy on my left side (my junk side) and it came back overwhelmingly positive.  That was sent to the VA the day after he 2/20/21 got the results and was entered according to my VA records in November of 21.  I was tried on prednisone (caused an ulcer) and he shortly left the practice and have been seeing his PA since then.

I finally got the community care appt for the GI stuff and tested positive for e. coli and c-dif.  She didn't see the ulcer on a scan so said it was probably small but to stay away from NSAIDs/prednisone etc.  

I also started to see a VA therapist and she eventually said therapy wouldn't do any good since I was still dealing with all of the medical stuff and her recommendation would be to come back after the medical stuff was handled.  Found out in August of this year she put the somatic disorder in my records and said that I asked to stop the therapy.  

I continued to see my community care PA neuro but she couldn't figure it out but kept trying .  Meanwhile I kept getting worse, I would have some periods when would feel ok for a couple of months but my symptoms would always come back.  I also developed a pain in the joint of my little toe, which it was determined that I needed an AFO brace because I was having issues raising my foot when walking.  I also was able to find out that when I was in the sun I would get a rash on my face and would definitely have a flare in symptoms.  

I went to see a neuro-opthamalagist for the double vision.  He said it was caused by a lazy eye, that I had since I was a kid.  He suggested surgery to correct it.  I told him I never had one, offered to show him pictures, my MEPS exam (which would of disqualified me) but he wasn't hearing it.  I'm guessing the somatic disorder diagnosis closed his ears. I told him I didnt want to do the surgery because if I was right I would probably need another surgery to reverse it if I was ever treated.  Around December of 2021.  

Last year wanting to get some independence back went to see him again and same thing.  I also started really entertaining thoughts about killing myself since it was started to seem like I would never get better.  Since I couldnt go out in the day anymore and I couldnt drive at night due to my keratoconus (I had to have my wife drive me around everywhere), I went back to him and tried to get him to at least entertain the possibility it was related to everything else...it didnt work again and I agreed to the surgery desperate to some return to a semi normal life.  When I met the surgeon had the same convo with the same results.  Had the surgery and the double vision was gone but within 3 months started coming back and was worse then when I started.  She recommended a 2nd surgery on the other muscles.  I had the 2nd one in July of last year.  Starting in November the double vision is now coming back.

In August I reached out to VA mental health for marriage therapy as all this was causing issues with not just me but my wife.  Our first appointment the therapist brought up the somatic disorder, said I was causing the issues because I wasnt doing enough.  She said she has lupus and has to get infusions every month and still works 3 jobs.  She didnt listen want to hear that I had a diasgnosis for the small fiber and an unknown/undiagnosed auto immune disorder.  We decided not to see her anymore. 

This also sent me over the edge for a bit.  I was actively trying to figure out a way to take myself out without traumatizing my family more than necessary.  Between the utter hopelessness of not getting anywhere as for a treatment, being in constant near daily pain, and then being "blamed for it all" was too much.

Luckily I reached out to a community mental health provider and they put me with my current therapist.  My first appointment she referred me to my immunologist and at least restored some hope.  She also told me I need to have the misdiagnosis removed as it is probably one of the main reasons I hadn't been diagnosed treated yet.  She offered to write a letter to the VA in support of having it removed.  MY community care neuro said the same and sent a letter without me asking. 

My immunologist redid some of the basic testing with the same results as previous testing.  He did some more advanced testing and with some more abnormal bloodwork and came back moderately positive for Anti-nt5c1a (Inclusion Body Myosistis, Lupus, a couple of other autoimmune disorders).  He wants to do more testing to further pin it down but the cost out of pocket is getting expensive.  After my last followup some of the testing I would have to pay was 1.5k.  He said and notated that I have definite immune dysfunction and evidence of an autoimmune disorder attacking my muscles. 

I initially paid out of pocket/medicare for my neurologist because I didnt want the VA med records to "taint" my immunologist visits.  Since the cost for some of the testing is becoming outside of what I can pay out of pocket I looped the VA in and sent all of my records and signed releases to make sure the VA could/had everything.  I ask the VA to update my records to include the previously diagnosed small fiber/autonomic neuropathy and any diagnosis coming from immunologist and to get a community care referral so I can keep seeing my immunologist and have the VA pay for testing/visits.  MY PCP re-adds the somatic disorder.  I contact the patient advocate to have it removed again, switch PCPs, get the community care referral for my immunologist, and add the small fiber/autonomic neuropathy to my VA records.  I get a call from my PCP's nurse telling me the somatic disorder was re-added because they didn't have any other diagnosis in my records (again my community care neuro sent them the small fiber/autonomic stuff back in 2021) and they wouldn't remove it unless I got a new diagnosis.  Was also told that my immunologist wasn't a part of Triwest so they wouldn't do a consult, but would send me to another immunologist (while having the somatic disorder still on my records) almost ensuring me a new imunologist wouldn't take me serious and start the whole process over. She also asked if I needed a consult to mental health because I kept bringing up how close I was to killing myself the months before.  Told her I was very happy with my current therapist and if I saw VA mental health again I more than likely will be in the same boat again. 

After the phone call I filed a congressional complaint, and that has resulted in some changes.  The somatization has been removed.  A note was added to try and CTA by saying it was removed at my request due to my new diagnosis.  The VA is going about getting my immunologist started with Triwest (my immunologist is completely onboard and had hos assistant reach out to the community care dept to get started.

My last follow up with my immunologist was 1/17/24.  He wants to start me on IVIG so he diagnosed me with Idiopathic progressive neuropathy to get the ball rolling.  Once it is approved by medicare (or the VA) I will be starting it.  It is a VERY expensive treatment so I can not cover it out of pocket.  He wants me to see the neurologist/neuromuscular doc that works for him.  He said after I have the appointment with his neuro my diagnosis will most likely be changing. 

Service connection wise...think it will already be so kind of rules out an 1151.  Reaching out to lawyers found on the web, have resulted in I have a case, but they cant take it due to the complexity....but please find someone because of the statue of limitations.

Potentially 2 malpractice suits... One FCTA against the VA and one against the community hospital/neuro-opthamalagist/eye surgeon for the 2 eye surgeries. 

Any help is appreciated.  Sorry again for the long post. 

 

 

 

[Dustoff1970]

I only read first few sentences but here is some info on FTCA malpractice tort claims.  I suggest you find an experienced veterans or tort claims attorneys.  You can contact the NOVA group (National Association of Veterans Attorneys) that can recommend someone like Ken Carpenter of Carpenter LLC to assist you.

I believe there is time limit on filing a federal tort claim and it is two years from date the malpractice/injury occurred or the date the injury became evident/known to the patient. 

I have had experience filing a VA Section 1151 Injury claim so can provide more info on this.  The next paragraphs in quote are from a former senior VA DRO rater/adjudicator.

"

"A tort claim is the first step you must take before you can file a lawsuit.  It is not a process within the VA disability claims process and folks like raters and DROs aren't involved.  In fact, the claims folks at your VA Regional Office won't even know that you have filed a tort claim.

Assuming that your attorney is familiar with tort claims, he/she should be able to fully explain the process to you; but I'll give it a shot.

As part of your claim you were required to explain in detail the negligence/malpractice that you think that the VA medical personnel committed and how much money you are requesting to make things right; or at least make you go away.    The government attorneys then have six months in which to respond to your claim.  That response will be with one of three options they have.

The first option is to grant your claim and cut you a check for however much you said that you wanted.  It happens, but you probably shouldn't hold your breath waiting on this one.

The second option they have available is to deny your claim outright.

The third option is to offer a settlement, an amount that is less than what your wanted but hopefully (from their standpoint) enough to make you go away.

Obviously if they offer option one you get what you wanted and it's over.

If they offer option two you have six months to file a lawsuit in federal court if you choose to pursue this further.  At this point going to court is going to make your attorney work meaning that you will most likely get good advice from your attorney about whether or not you should continue since few attorneys are going to want to invest the time and money into a court case unless they think that they have a reasonable shot at winning.  Again, this isn't like filing a VA claim.  It's federal court where the attorney must write  briefs and pay filing fees among other things not to mention the time spent in court.

Finally if you are offered option three you must decide if you want to accept what is offered or reject it and file a lawsuit in federal court gambling that you can get more in a trial.  The downside is that you could end up with nothing if you reject the offer and then lose at trial.  It is important to note that if you do reject a settlement offer the fact that you were offered a settlement will never be mentioned again.  The judge won't know and you can't tell him/her.  It will be like it never happened.

By having an attorney at the tort filing stage as opposed to doing it yourself you have probably increased the chance that they will offer a settlement, assuming that you have a case with at least some merit..  Attorneys don't like to go to court.  This applies to both your attorney and the government attorneys.  If they think that they can get our reasonably cheap by writing you a check for less than what it would cost them to go to court (even if they are certain that they would win in court), they will often do that since they are first and foremost looking to do whatever will be the most financially beneficial course of action for the government".

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

 

 

Edited January 20 by Dustoff1970

[mayertucker]

Thanks for the reply.  I mainly need to find a lawyer to do it or at least help come up with potential damages.  I figured all the other stuff over the past couple of weeks but never came across NOVA, so I will check them out.

If this stuff wasn't on the way to already being service connected and wasn't already 90% TDIU P&T the 1151 would be the way to to I think.  But since it isn't would probably be farting into the wind going that route.

Def appreciate the info!

[broncovet]

There is "at least" one "gotcha" that is a VA favorite.  Here is how this one goes:

Example:

   The Veteran goes to his VA and a Doctor treats him (and causes harm). at the VA.  Its easy to assume when you are at the VA hosptial, the doc treating you WORKS for the VA.  Wrong, and an expensive mistake.  

    So this doc treats you and harms you.  You have some proof.  You file an 1151/tort claim.  After years, it gets denied because the doc wasnt a VA doc, he was instead a contractor.  And, its too late to refile against the contractor, the statue of limitations has ran out.  This is done on purpose, in my opinon.  

    To avoid the above, find out ahead of time "WAS Doc ABC" an employee of VA at the time he malpracticed on you?"  

Again, its easy to assume because you went to the VA, the doc had a badge that said "VAMC", but whether or not this doctor was an employee or a contractor, makes a big legal difference and its treated differently.  Find out before you get on a "hamster wheel to nowhere".  

Edited January 20 by broncovet

[mayertucker]

Yea....I'm trying to figure out how to do that at the moment.  In my case it would be easier if they weren't since then wouldn't need the ftca.  I believe there was a law passed recently where the VA has to disclose who they worked for once you submit the sf95 form.  I'm trying to hold off on that part till either get a lawyer or can figure out realistic damages.  

[Dustoff1970]

An experienced motivated attorney could file  separate tort claims against both the VA and treating doctor/s to cover all basis.  Not much extra paperwork involved and this would provide more information in the evidence discovery process.  The court perhaps would throw out the one that was not applicable.   Just a thought but I have used this all options method to successfully file disability claims since 1998.  You might ask your attorney about this during initial consultation.

 

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

 

 

[mayertucker]

Thanks for the reply.  Could def be a possibility.  Have to find that lawyer first, which is where the roadblock lies.