Emotionally Extremely Disturbed - Please Tell Me I Did Not Have Only 90 Days To File A Notice Of Intention To File Claim !

[marielovesashley]

In New York State, if the medical malpractice / negligence occurred at a municipal hospital, such as one of the members of the New York City Health and Hospital Corporation or a County Hospital such as Nassau County Medical Center there are very strict periods much shorter in length. A Notice of Claim has to be filed with the municipality within 90 days of an event and a lawsuit must be started within one year and 90 days. At a hospital operated by the State of New York, such as Down state Medical Center in Brooklyn, Stonybrook University Hospital in Suffolk County or Upstate Medical Center in Syracuse a Notice of Intention to File Claim must be made within 90 days of the event and with the State of New York in the Court of Claims within two years.

Source:

http://www.ask4sam.net/glossary.html

Questions:

1) In the County - Even if they I fought like hell to get all the documentation and they finally send me all the documentation March 20th, 2007 (U.S. post stamp) ? (I have proofs that they took their time - emails sent)

2) A hospital operated by the State of New York - is a VA hospital considered to operated by the State? I notified the Congressman McHugh as soon as December 19th, 2006 and he forwarded the informations to the Department of Veterans Affairs?

[mobie16r]

Marie,i read your profile and you don't list your self as a veteran.If you are a veteran,there is no time limits to file a claim with the va.

mobie

[Berta]

Marie is widow of a veteran.

A widow has one year from date of death to acquire the best EED-date of death.

Otherwise the EED is date of claim.

A widow -if the vet had claim in progress and the widow re-opens-and succeeds on the deceased veterans claim-can be awarded all benefits due and payable to the veteran prior to the veteran's death-IF the widow or widower files the 21-534 application within one year after death.

The new law is ALL- meaning if the vets claim was in the system for years and then the widow succeeded on the vets claim-it could be a very substantial accrued award.

Veterans and widows or widowers of veterans only have 2 years from time of knowledge of death or injury due to VA medical care to file Federal Tort Claim.I had local vet.He claimed malpractice causing him to lose part of his leg.AN incident involving maggots in his leg at a VAMC while hospitalised was the date he used for his knowledge of malpractice.In any event I knew him and gave him the SF 95 within a week after this occurred.Also he sent me his med records and I did see entries that possibly supported his charges.

Long story- however- I asked him numerous times,after he left the local VAMC, if he had sent the SF 95 to Regional COunsel and obtained legal services.He had multiple excuses that he didnt do those things.He called me continually during these 2 years of the SOL and mailed me copies of letters he had sent to COngressmen and Senators, but he didnt mail the SF 95.

He had been transferred out to other facilities so I couldnt go and get the form and mail it for him-

He filed the form 2 days after the 2 year SOL ran out.

He lost any potential he had for FTCA award due to malpractice.

If the malpractice occurred in private hospital and not VA-those statutes are different.

Edited April 13, 2007 by Berta (see edit history)

[marielovesashley]

Hi,

Yeah, I did not have the time to really create a profile yet, sorry. :D

Berta, I know there is no contradiction here:

A widow has one year from date of death to acquire the best EED-date of death.

Otherwise the EED is date of claim.

-vs-

Veterans and widows or widowers of veterans only have 2 years from time of knowledge of death or injury due to VA medical care to file Federal Tort Claim.

I wish to check if I am getting what I need to get from this above. What it means is for the best benefits if you claim inside a year, otherwise you'd get what you'd get if you do that inside 2 years. Please confirm or infirm.

Is it the 21-534 application? I guess it is because it is following right after. If that's the case, "P.J.", a DAV officer told me to fill this out a.s.a.p. so I did 3 weeks after my hubby's death.

Thank you for being effective. I have other things to sort out and I'll be back soon.

See ya later !

[Berta]

"Is it the 21-534 application? I guess it is because it is following right after. If that's the case, "P.J.", a DAV officer told me to fill this out a.s.a.p. so I did 3 weeks after my hubby's death."

The DAV rep was right-

the VA wanted widows to apply within that first year because that would kick in the accrued benefit determination.

What I mean by that is- if a veteran had a pending disability claim for VA compensation-and the widow applied for this as an accrued benefit in the 21-534 within the first year after death- the VA would award the accrued benefit due the veteran if the widow re-opens the claim and supports it with more evidence- if needed.

The VA does not really want widows to lose the accrued benefit. If the vet deserved the accrued compensation,due to medical evidence-they want to award it to the widow or widower.The VA doesnt want to keep it.

There is a section you already filled out if you have filed the 21-534 already-

if the vet had a pending claims for direct SC comp- the VA will adjudicate that-and award the money to you- if the benefit is granted.

Also the VA will award DIC to date of death but only if the 21-534 is filed within that year after death.

I have no idea how your DAV rep handled the Sec 1151 issue.

It could be put as part of a 21-534 application or filed separately.

It appears you are filing for DIC because the VA caused your husbands death under Section 1151.

I filed both direct SC death and also Sec 1151 death.The DAV rep will be more familiar with your situation and can advise you better on that.

If you intend to file a federal tort claim-the DAV will not be able to advise on that-

The 2 year statute of limits is only on the FTCA issue.

Did you read the older reply from a malpractice lawyer at ALLVETS?

FTCA issues with VA are legal federal issues with the USA -

DIC under Sec 1151 or direct SC death is a sole VA issue that is separate from the FTCA claim.

[marielovesashley]

The DAV officer is my friend. I was asking the folks all over the internet (100 groups) to call the Congressman when my husband's liver and kidneys were shutting down. It's how I met P.J.

American Legion is my rep.

Thank you for your good work. :D