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VA Medical Negligence

Krista Weida
January 31, 2019




 

Have you or a loved one been disabled or died as a result of VA medical treatment? 

There may be help without going through the court system.

 

Section 1151 benefits are often unknown to a veteran and his/her family.  Being successful under this law can be confusing and complicated.  The attorneys at Lawyers for American Vets can help navigate the system and help you determine if you possibly have a claim.  We encourage you to reach out to our attorneys for a no-cost consultation.  We have provided some information below to assist in determining whether these benefits might be applicable to you or a loved one.

What is a Section 1151 claim?

Having a claim under Section 1151 requires that an injury or death be proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” or by “an event not reasonably foreseeable “in VA’s furnishing of hospital care, medical treatment, surgical treatment, or examination.  Although similar in standard to filing a medical malpractice civil claim under the Federal Tort Claims Act in federal court, this claim is against the VA specifically and follows the same process that a veteran uses to file a claim for compensation benefits.  In fact, if a veteran is successful in an 1151 claim, the veteran is treated as though he/she is service connected for such disability and receives the same benefits as though that disability was the result of his/her service. 

Does it matter that my injury or death of a loved one was decades ago?

There is no statute of limitations for filing an 1151 claim.  Thus, there is no deadline to file a claim after the event happens.  However, the effective date for a successful claim will be the date the claim was filed, not the date of the event.  Therefore, it is better to file the claim as early as possible to get the earliest effect date.

What are the requirements for a successful 1151 claim?

Assuming that the disability or death is not the result of a veteran’s own willful misconduct, a claimant must show all of the following:

  • The disability or death was caused by hospital care, medical or surgical treatment, or examination; and
  • The care was furnished by a VA employee or in a VA facility; and
  • The proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination or it was an event not reasonably foreseeable.

Most claimants will need to obtain an independent medical opinion to show that the VA care actually caused the additional disability or death and either establish that the VA failed to exercise the degree of care expected, that the VA furnished the care without informed consent, or establish the injury or death resulted from an “event not reasonably foreseeable.”

For claims based on disability or death occurring while the veteran was receiving VA vocational services or Compensated Work therapy, the claimant must show that the proximate cause of disability or death was VA training, rehabilitation services, or Compensated Work Therapy.

What do I have to prove?

The main difference between a civil suit under the Federal Tort Claims Act and an 1151 claim against the VA is the standard a claimant must prove.  For a civil suit, a claimant must prove by a “preponderance of the evidence” that the health care provider did not act reasonable given the circumstances.  For an 1151 claim again the VA, the standard is lower and requires only the “benefit of the doubt” be given to the health care provider or that the negative and positive evidence is in approximate balance.

In determining whether additional disability has occurred (in cases of death, it is presumed), the VA will compare the veteran’s functioning immediately before the care with the functioning after the alleged mistreatment.  As in proving a disability is service-connected, the question to be answered is “is it as least as likely as not that the veteran has an additional disability.” 

What constitutes VA hospital care, medical or surgical treatment, examination, vocational services, and CWT?

Establishing entitlement to 1151 requires a determination that the VA’s direct actions caused the veteran’s harm.  Basically, a veteran cannot claim 1151 by merely being present or witnessing the action.  The Court of Appeals for Veterans Claims has held that “hospital care” is defined as the provision of services unique to a patient’s hospitalization.  The Court has also set forth factors to consider when determining whether there was “hospital care,” to include, but not limited to:  nature of the services, degree of VA control over patient freedom, mental and physical conditions of the patients, and foreseeability of potential harm.

Does a referral from a VA doctor to a non-VA doctor constitute VA medical treatment or care?

This issue made its way all the way to the Federal Circuit court.  The Federal Circuit court held that not only does the VA need to determine whether the VA physician caused the veteran’s injury, the VA must also determine whether the referral was negligent (i.e. was the referred procedure recommended negligent.)  So in short, it may.

What about the VA’s failure to provide treatment?

Failure to provide the adequate treatment that causes additional disability or death can also be the basis of an 1151 claim.  For example, if a veteran contracts an infection at a surgical wound site and the VA fails to treat it properly and the veteran ends up losing a limb, the veteran may be eligible to receive benefits under 1151.

What does it mean to suffer an “event not reasonably foreseeable”?

Basically an “event not reasonably foreseen” is based on what a reasonable health care provider would have foreseen.  The important thing to remember is whether the health care provider would not consider the event an ordinary treatment risk. A good rule of thumb is that if the informed consent did not mention such event, this may be good support that the risk was not foreseeable. 

Statutory change in October 1, 1997

If a claim for a disabling event or death was filed before October 1, 1997, a claimant is not required to establish fault or accident by the VA.  However, the general counsel of the VA advised that when the claim is based on VA omission, the failure of ordinary skill and care would be a necessary element of causation rather than an element of entitlement.  On October 1, 1997, the law changed and now the claimant is subject to the fault or accident requirement. Even if you did not file a claim prior to October 1, 1997, a claim may still be established if you can prove that a claim was reasonably raised or inferred from the record and the VA never adjudicated the claim.  A comprehensive review of your records would be necessary for establishment.

What does it mean to be treated as if service-connected?

One of the benefits of being a veteran is that if a disease or injury was incurred in or a result of a veteran’s military service, such condition may be service connected and the veteran may receive compensation benefits.  Therefore, a veteran receiving treatment by the VA that results in additional disability or death would receive compensation benefits on a monthly basis as if it were connected to their military service.

How do I obtain assistance?

These issues are often confusing and complicated.  If you wish to speak to an attorney about a possible claim, please reach out to Hrabcak & Co., LPA, Lawyers for American Vets, for a free consultation.  The contact number is 614-781-1400.