I served in the 1st Marines in Korea and fought at the Chosin Reservoir. I have 100% VA disability status.

I recently went to the VA in Massachusetts for a routine colonoscopy procedure which ended in disaster. During the procedure, the VA Dr. ruptured my spleen. I then had 4 hour emergency surgery where my spleen was removed. I have not been the same since and I am still recovering from the ordeal. Any guidance on how I can pursue legal action would be greatly appreciated.

Thank you!

John: Pulled this off another board--it might help, can't say anything about the firm, just like was noted by the person posting.
"This isn't a recommendation as I have no way to know the quality of representation. I am pleased to see attorneys advertising for VA malpractice clients.



Susan Ramsey, Esq., Gary Roberts and Associates, www.palmbeachtrailattorney.net,

This post has been edited by GuaymasJim: Oct 13 2008, 08:56 PM "

Sounds like malpractice -cut and dry to me-

I suggest that you first obtain ALL of your VA medical records.

I then suggest tht you file a Section 1151 claim as well as an FTCA tort claim.

Since you get 100% already this will not benefit you in comp under the Sec 1151 claim- but the TORT will award money without any offset-

After you get all of your med recs from VA- file a FTCA claim- (the Statute of limits is 2 years from date of your knowledge of the medical error).

I will attach the SF 95 form.

(I do suggest that anyone filing a FTCA obtain a lawyer and an IMO-the lawyer will fill out the SF 95 themselves-you dont need a lawyer-but I didnt do those things and won a FTCA but VA will fight you tooth and nail -sometimes- a vet friend I helped got 1151 award in 3 months- so it all depends on what the VA will do when they get the claims)

Under witnesses list the names of the doctors who did the surgery-adress the VAMC
under property damage say not applicable- under Question #1

I could give you the wording I used but then again a lawyer might want to state this differently than I did-


Ask for millions- you wont get millions but make the amount high. Make sure if you file this form yourself that you put the same amount in 12 B as you total it in 12 D.

You really wont benefit from the 1151 claim in comp-but this could make it easier for your survivors if the 1151 and the FTCA succeed.

Also-the friend I mentioned? he would not let me file a SF 95 for him-
He was afraid of the VA and then again- he might have spent the settlement in a week.

He could have got plenty for malpractice from the VA but since the 1151 went so fast- you might get a Sec 1151 award prior to any OGC settlement offer.

These are two separate entities and claims.

File the SF 95 with the distrtict counsel via your VARO as well as copy to the OPGC in DC- file the Sec 1151 with the VARO directly.

This is an unforeseen medical error event that-in my opinion- is malpractice.
However I get many FTCA claims questions and many are not malpractice at all once the med recs are assessed.

In your case -based on your post -this additional disability definitely should not have occurred.

I am investigationg and fighting VA over a situation that VA doesn't want us (or the public) to know.

They have a malpractice reporting requirement to the NPDB when they settle a FTCA case with cash.

They are not reporting all of the cases they settle.This means those doctors never get disciplined and the VA stats on VA malpractice show less then they should.

It might be worth the time for you to check out these doctors who might have malpracticed (maybe just the surgeon?) on your states Dept of Health and Human Services disciplined doctor's Data Bank to see if there has been any past negligence reported on them that caused a FTCA pay out.

ooops forgot-here is the SF 95

as I said you can do this yourself but I highly recommend getting a lawyer and also an IMO.

The 1151 claim-

To (VARO where your C file is at)

C file Number xx xxx xxx

To whom it may concern:

This is a claim under Section 1151, 38 USC.

I fully believe my VA medical records will reveal that I recently incurred additional disability due to VA negligence during a standard colostomy procedure performed at the ______ VAMC on (date).
I have enclosed copy of the complete surgical report and my discharge certificate dated .

Respectfully, (sign, copy and mail with a proof of mailing)


(With the enclosed copies of the actual med recs -you might not even get a VCAA letter-as they could make an award right away.Then again- my FTCA claim had a VA peer review that agreed with my charges of malpractice causing my husband's death- 3 months after I filed it and the RC wanted to talk settlement with me right away.

The report,, the RC,(regional VA counsel) and the VA doc who wrote it 'disappeared' and I didnt find this report for over 8 more years.VA said it never existed - but I got it.
What they could have settled in 3 months - ended up taking 3 more years.)

Thanks Bertha! This is extremely helpful. How do I go about obtaining a "complete surgical report" from the VA?

Regards,
John

Great Jim- here is another one:

http://www.ddandb.com/duffyverdicts.PDF

"Excessive force during a colonoscopy resulted in a ruptured spleen of a woman. The

physician performing the colonoscopy did not guide the colonoscope in a gentle, smooth

manner. Her spleen had to be removed because of intense abdominal pain. A verdict of

$425,000 was awarded"



You have to prove they were negligent in some way and caused you additional disability.

Thanks you very much for providing the name of the attorney with the MA office!

Wonderful! Thanks Berta!
John