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Medical Malpractice
Tort
1151
Medical Malpractice, Tort and the 1151 Claim
Do you believe that you've been harmed by the medical care provided you by the VA? Are you unsure what you should do? Have you been told you can't sue the government?
Before you decide to proceed with an 1151 or a tort claim, you should think it through clearly. Were you harmed by negligence or is the outcome of your treatment less than you expected but still within the realm of normalcy? When you go in for treatment of a condition, the condition can't always be cured. If you had high expectations and there was some false hope of being "normal" again, you may not have a case.
However, if you believe that through negligence or error on the part of any member of your care team your outcome is disabling in any way, you may want to consider filing an 1151 claim or a tort claim.
You must prove that something occurred that was below the usual standard of care. This usually requires a statement (a nexus letter) from a physician who has reviewed your records and who agrees that you have been treated in a way that brought about a disabling condition. The statement should be made by a physician who is outside the VA system and who you have provided with complete copies of your medical records. This process is similar to seeking an IME and nexus letter.
The 1151 claim is an administrative remedy that you may file yourself. It is handled by VA much as they handle a routine claim for a disabling, service connected disability. You may initiate an 1151 claim at any time by writing a letter to your VA Regional Office.
Tort is much more complex and very similar to filing a medical malpractice lawsuit in a civilian court of law. You will want to consult an attorney who is experienced in filing tort cases.
Which to file, 1151 or tort? Probably both. The tort claim must be filed within 2 years of the claimed event.
Consulting an attorney early after the event that harmed you is the best thing you can do for yourself. The initial consultation costs you nothing. If the attorney accepts your case, you won't owe any money unless and until you win your claim. This is called a contingency fee and the lawyer is paid a percentage of any money you recover.
If you believe that the quality of your care and treatment was harmful to you and you've suffered permanent injury or disability, don't try to handle it alone. Contact an attorney who can help you. Do it soon after the event. You'll benefit by the guidance of a skilled professional who is on your side.
TITLE 38, PART II, CHAPTER 11, SUBCHAPTER VI, § 1151. Benefits for persons disabled by treatment or vocational rehabilitation
Dear Jim;
I am
writing this for my husband, a Vietnam vet. In 02/ 2007 he had a liver
transplant and has been trying to get service connect benefits. He is
100%disabled, but only gets social security.
Early 2010 he lost his primary care who who left the VA and went into private practice. The doctor would do regular blood work ups on my husband because he has to take immune suppressants. Well, after this doctor left, his primary care dr was 'replaced' but obviously, his labs, to which he would get checked once a month, were going un-monitored.
My husband always has stomach pain and has to take pain pills, so, stomach pain is not "uncommon" for him. When he started TO complain of abdominal pain, and I noticed some distention, then I knew something was wrong. He also ended up not eating too much over the next few months, but for him, if he gets busy in a project, he can forget to eat and lose weight. But in 6 months, he lost 50 pounds, which we didn't know.
Early 2010 he lost his primary care who who left the VA and went into private practice. The doctor would do regular blood work ups on my husband because he has to take immune suppressants. Well, after this doctor left, his primary care dr was 'replaced' but obviously, his labs, to which he would get checked once a month, were going un-monitored.
My husband always has stomach pain and has to take pain pills, so, stomach pain is not "uncommon" for him. When he started TO complain of abdominal pain, and I noticed some distention, then I knew something was wrong. He also ended up not eating too much over the next few months, but for him, if he gets busy in a project, he can forget to eat and lose weight. But in 6 months, he lost 50 pounds, which we didn't know.
On Sept 21st. of this year, he was laying
on the couch and couldn't make it from room to room to get his meds. I
told him I was taking him to the hospital. In ONE lab work, we found out
that he had Stage 4 cancer, it had already metastasized to his bone. It
is in his right lung, right shoulder, left hip. and just filled up with
tumors. He was diagnosed with Non hodgkins Lymphoma.
Want to hear something even more funny? After this diagnosis, a week or 2 later, the VA came back to say, that was NOT NHL, but it was caused by his medicine from his liver transplant!
Now Jim. . . Can you believe this crap?! My husbands prognosis is not good at all, and the American Legion filed a claim for my husband for service connected benefits, asked it to be expedited due to his advanced state, and the VA replied back and said they could not. So, what are we to do for service connected benefits?
The pt advocate said we could file a tort claim, but how if we have no money for an attorney? Because my husband got cancer while under care of the VA. What do you feel about this? How hard is this?
Can you please help us sir? I do have several complaints against the VA Hospital, they tried giving my husband only 1/2 of his dose of a very strong pain med, Dilaudid, via injection, and when that was told to the nurse, she wanted to give him the "additional" injection. We refused as we didn't know what it was that she wanted to give him. The med was already drawn up in a syringe, and we didn't have a clue what was in it!
They are administering him chemo once every three weeks for 6 months. They are giving him meds in with his chemo treatment that causes additional neuropathy! When my husband complained how bad his fingers were getting, to the doctor, he said he would discontinue the med that causes neuropathy!! Why on earth would they include a med like this?! Wonderful VA doctors hard at work hurting our Vets. My husband won't let me say anything to the doctors while they are caring for his cancer.
Want to hear something even more funny? After this diagnosis, a week or 2 later, the VA came back to say, that was NOT NHL, but it was caused by his medicine from his liver transplant!
Now Jim. . . Can you believe this crap?! My husbands prognosis is not good at all, and the American Legion filed a claim for my husband for service connected benefits, asked it to be expedited due to his advanced state, and the VA replied back and said they could not. So, what are we to do for service connected benefits?
The pt advocate said we could file a tort claim, but how if we have no money for an attorney? Because my husband got cancer while under care of the VA. What do you feel about this? How hard is this?
Can you please help us sir? I do have several complaints against the VA Hospital, they tried giving my husband only 1/2 of his dose of a very strong pain med, Dilaudid, via injection, and when that was told to the nurse, she wanted to give him the "additional" injection. We refused as we didn't know what it was that she wanted to give him. The med was already drawn up in a syringe, and we didn't have a clue what was in it!
They are administering him chemo once every three weeks for 6 months. They are giving him meds in with his chemo treatment that causes additional neuropathy! When my husband complained how bad his fingers were getting, to the doctor, he said he would discontinue the med that causes neuropathy!! Why on earth would they include a med like this?! Wonderful VA doctors hard at work hurting our Vets. My husband won't let me say anything to the doctors while they are caring for his cancer.
I've wrote enough, I hope you have a good picture of what is going on.
Thank you.
Reply;
I'm very sorry to hear of the problems your veteran is having.
I'm a retired health care professional. I understand the anxiety, frustration and anger of being a victim of cancer. I know it seems as if everyone is doing everything wrong at times.
However, you didn't tell me anything that indicates that the caregivers at the VA are doing anything wrong. Please allow me to explain. I'm not taking sides with VA, I just have a view of the situation that is tempered by my experiences as a health care professional...35 years of such experience working in civilian and VA hospitals. I've helped to care for many cancer patients. Currently I help care for my best friend here at home...he's a Vietnam vet and he is undergoing chemotherapy and transplants for his cancer.
You are in a difficult and stressful position.
First...VA didn't give him cancer. That he has a liver cancer is a terrible thing but the fault for that lies with mother nature or God, however you want to look at it. He got a transplant and although you don't say if that was done by VA or in a civilian facility, that operation is a big one and it comes with plenty of challenges.
Liver cancer is not always a service connected condition. The people who get liver cancer aren't all Vietnam veterans, they are mostly civilians who never served. The VA can't offer him disability benefits unless the condition is somehow service connected. That's the law and those laws are written by Congress...not the VA.
VA rarely expedites any claims. There are hundreds of thousands of claims waiting to be processed today. The majority of those claims are for veterans who are sick or in a serious financial distress. Your veterans claim is no different than those others and the fact is that to try and prioritize them all may be the answer but to try and pull his claim out of line to move it ahead of other deserving veterans won't work.
The diagnosis of n-Hl is one that can be service connected and related to Vietnam service. However, there are many diseases that mimic n-Hl and the diagnosis can be very tricky. If he was told he may have n-Hl and then there was a change of the diagnosis when further lab testing was done, that isn't at all unusual. This happens in civilian hospitals as well as in VA hospitals.
Medicine is not a perfect science. The best doctors in the best hospitals (and I've worked in some of the best) aren't always able to pinpoint a diagnosis correctly without it taking some time. Medications are often powerful enough to cause other problems.
A tort claim is a medical malpractice lawsuit that alleges that the doctors have done things that harm the patient. It's very serious and is filed in cases where it appears that a medical error has harmed the patient. In this case you haven't told me that such things have happened. It sounds to me as if your husband has a very serious condition that is being treated routinely...and even successfully.
It's very unfortunate that cancer isn't always easily cured. The fact is that aggressive cancer is a leading cause of death in America...not just at the VA but in all walks of life.
If you believe that medical malpractice has occurred and that he has been harmed by that, you should review the facts with a qualified lawyer.
To review this won't cost you anything. Attorneys who file medical malpractice cases for veterans or civilians work on a contingency fee basis. That means that they do not charge you any money until such time as they win your case. Their fee then comes out of any money paid to the patient.
Medical malpractice attorneys won't take cases that they can't win. If you contact a lawyer for a review and they determine that the VA hasn't done anything wrong, they won't file suit on your veterans behalf.
I'd like for you to pursue a review of this by a competent and expert attorney so that you'll know if you have a case or not.
First, read my page on "How To Hire A Lawyer" Once you do that return to the home page of my web site. Look carefully and you'll see a number of attorneys who market their practices there.
All these lawyers offer free reviews of veterans claims and they will tell you whether you have a case or not. They make their living doing cases for veterans and they have that as an incentive to give you the benefit of any doubt.
Please give your veteran my best wishes.I'm a retired health care professional. I understand the anxiety, frustration and anger of being a victim of cancer. I know it seems as if everyone is doing everything wrong at times.
However, you didn't tell me anything that indicates that the caregivers at the VA are doing anything wrong. Please allow me to explain. I'm not taking sides with VA, I just have a view of the situation that is tempered by my experiences as a health care professional...35 years of such experience working in civilian and VA hospitals. I've helped to care for many cancer patients. Currently I help care for my best friend here at home...he's a Vietnam vet and he is undergoing chemotherapy and transplants for his cancer.
You are in a difficult and stressful position.
First...VA didn't give him cancer. That he has a liver cancer is a terrible thing but the fault for that lies with mother nature or God, however you want to look at it. He got a transplant and although you don't say if that was done by VA or in a civilian facility, that operation is a big one and it comes with plenty of challenges.
Liver cancer is not always a service connected condition. The people who get liver cancer aren't all Vietnam veterans, they are mostly civilians who never served. The VA can't offer him disability benefits unless the condition is somehow service connected. That's the law and those laws are written by Congress...not the VA.
VA rarely expedites any claims. There are hundreds of thousands of claims waiting to be processed today. The majority of those claims are for veterans who are sick or in a serious financial distress. Your veterans claim is no different than those others and the fact is that to try and prioritize them all may be the answer but to try and pull his claim out of line to move it ahead of other deserving veterans won't work.
The diagnosis of n-Hl is one that can be service connected and related to Vietnam service. However, there are many diseases that mimic n-Hl and the diagnosis can be very tricky. If he was told he may have n-Hl and then there was a change of the diagnosis when further lab testing was done, that isn't at all unusual. This happens in civilian hospitals as well as in VA hospitals.
Medicine is not a perfect science. The best doctors in the best hospitals (and I've worked in some of the best) aren't always able to pinpoint a diagnosis correctly without it taking some time. Medications are often powerful enough to cause other problems.
A tort claim is a medical malpractice lawsuit that alleges that the doctors have done things that harm the patient. It's very serious and is filed in cases where it appears that a medical error has harmed the patient. In this case you haven't told me that such things have happened. It sounds to me as if your husband has a very serious condition that is being treated routinely...and even successfully.
It's very unfortunate that cancer isn't always easily cured. The fact is that aggressive cancer is a leading cause of death in America...not just at the VA but in all walks of life.
If you believe that medical malpractice has occurred and that he has been harmed by that, you should review the facts with a qualified lawyer.
To review this won't cost you anything. Attorneys who file medical malpractice cases for veterans or civilians work on a contingency fee basis. That means that they do not charge you any money until such time as they win your case. Their fee then comes out of any money paid to the patient.
Medical malpractice attorneys won't take cases that they can't win. If you contact a lawyer for a review and they determine that the VA hasn't done anything wrong, they won't file suit on your veterans behalf.
I'd like for you to pursue a review of this by a competent and expert attorney so that you'll know if you have a case or not.
First, read my page on "How To Hire A Lawyer" Once you do that return to the home page of my web site. Look carefully and you'll see a number of attorneys who market their practices there.
All these lawyers offer free reviews of veterans claims and they will tell you whether you have a case or not. They make their living doing cases for veterans and they have that as an incentive to give you the benefit of any doubt.
Regards,
Jim Strickland
