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Is This Answer Enough Or Is More Needed


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9 replies to this topic

#1 Charleese

 
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Posted 18 January 2010 - 04:31 PM

Hi Everyone,

As you know my son had surgery by VA Doctors and now it has left him with numbness, scarring and nerve or nerve(s) damage.

I'm am helping him file an SF 95. Under item 10 it asks that you state nature and extent of each injury or cause of death which forms the basis of the claim.

This is what we put: Nature - Numbness on right side of neck and jaw; scarring on right side of neck; and nerve or (nerve(s) damage. Under Extent we put: Permanent Numbness on right side of neck and jaw; Permanent Scarring on right side of neck (approximately 5 inches); and Permanent Nerve or Nerve(s) damage.

We also state: Mother was not conferred in decision making process prior to full neck disection , as stated that she would be which is outlined under Comments item #17 of VA Consent for Treatment/Procedure that was signed by my son prior to surgery. A full neck dissection was performed by doctorsw without conferring with my mother. If they had conferred with my mother then they would have known that she would of opted for radiation therapy over full neck dissection. The VA was negligent in my care when they refuse to confer with my mother prior to them doim doing a full neck dissection so she could aid in the decision making process. Therefore their negligence led to them nicking a nerve or nerve(s) during procedure causing me permanent numbness on the right side of my neck and jaw; permenanet scarring on right side of neck, plus permanent nerve or nerve(s) damage. I believed if the VA and their doctors had conferred with my mother after frozen section was compkleted, the Doctors would have known tha my mother would have opted for radiation therapy instead of full neck dissection. Also, my mother's decision would have led to my not having permanent numbness on the right side of my neck and jaw; my not having permanent scarring on right side of my neck and my not having permanent nerve or nerve(s) damage. When stitches were removed, it look liked someone cut me with two rusty razor blades. My scar is approximately 5 inches and visible. People are always asking what happen to me. Others have had this operation at VA and you cannot see the scarring.

My question is this enough or if not tell me what is missing.

Thanks in advance for your replies.

Edited by Charleese, 18 January 2010 - 08:32 PM.


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#2 Berta

 
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Posted 19 January 2010 - 07:45 AM

I feel you covered this well but I also suggest getting an IMO and also a lawyer.

Make the point in the very first question as to the basis for cause of action is that the VA did not adhere to established medical principles or procedures which are found within the standard and usual medical community-and through that medical error or omission they caused additional permanent disability to occur.

(or any words to the affect that the VA did not do what real doctors outside of the VA would have done in same medical situation)

Lawyers prefer writing these SF 95 themselves in many situations.

Do you have time left under the Statute of Limits-to get an attorney for this?

Statute of Limits- SF 95 must be filed within two years after direct knowledge of the malpractice or negligence.

#3 carlie

 
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Posted 19 January 2010 - 08:09 AM

Hi Everyone,

As you know my son had surgery by VA Doctors and now it has left him with numbness, scarring and nerve or nerve(s) damage.

Charleese,
How old was your son when this procedure was done?


This is what we put: Nature - Numbness on right side of neck and jaw; scarring on right side of neck; and nerve or (nerve(s) damage. Under Extent we put: Permanent Numbness on right side of neck and jaw; Permanent Scarring on right side of neck (approximately 5 inches); and Permanent Nerve or Nerve(s) damage.

Charleese,
Is there full medical documentation that support findings of the above residual disabilities ? If yes, are you submitting that with the claim ?


We also state: Mother was not conferred in decision making process prior to full neck disection , as stated that she would be which is outlined under Comments item #17 of VA Consent for Treatment/Procedure that was signed by my son prior to surgery.

What age was your son at when he signed the consent form ?

A full neck dissection was performed by doctorsw without conferring with my mother. If they had conferred with my mother then they would have known that she would of opted for radiation therapy over full neck dissection. The VA was negligent in my care when they refuse to confer with my mother prior to them doim doing a full neck dissection so she could aid in the decision making process.
Therefore their negligence led to them nicking a nerve or nerve(s) during procedure causing me permanent numbness on the right side of my neck and jaw; permenanet scarring on right side of neck, plus permanent nerve or nerve(s) damage. I believed if the VA and their doctors had conferred with my mother after frozen section was compkleted, the Doctors would have known tha my mother would have opted for radiation therapy instead of full neck dissection. Also, my mother's decision would have led to my not having permanent numbness on the right side of my neck and jaw; my not having permanent scarring on right side of my neck and my not having permanent nerve or nerve(s) damage. When stitches were removed, it look liked someone cut me with two rusty razor blades. My scar is approximately 5 inches and visible. People are always asking what happen to me. Others have had this operation at VA and you cannot see the scarring.


Charleese,
I feel the above will be looked upon as hypothetical speculation.
As they did not confer with you prior to the procedure then there is
no way to prove or show what your decision would have been.

I would think that "their negligence led to them nicking a nerve or nerve(s) during procedure causing me permanent numbness on the right side of my neck and jaw; permenanet scarring on right side of neck, plus permanent nerve or nerve(s) damage",
would be the lead cause of any claim for the residual disability.

As for, "People are always asking what happen to me.", how has this added to any
claim for the residual disability. Has it effected him mentally or emotionally ?
If yes, what medical evidence from a mental health provider is of record, to support findings of the additional residual disabilitiy ?


jmho,
carlie


My question is this enough or if not tell me what is missing.

Thanks in advance for your replies.



#4 Charleese

 
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Posted 19 January 2010 - 11:13 AM

I feel you covered this well but I also suggest getting an IMO and also a lawyer.

Make the point in the very first question as to the basis for cause of action is that the VA did not adhere to established medical principles or procedures which are found within the standard and usual medical community-and through that medical error or omission they caused additional permanent disability to occur.

(or any words to the affect that the VA did not do what real doctors outside of the VA would have done in same medical situation)

Lawyers prefer writing these SF 95 themselves in many situations.

Do you have time left under the Statute of Limits-to get an attorney for this?

Statute of Limits- SF 95 must be filed within two years after direct knowledge of the malpractice or negligence.


Berta,

We do intend to get an IMO and a lawyer, but we thought you had to do an SF 95 and Section 1151 first before you hire a lawyer. His surgery took place on April 3, 2008 so we do have a little time left. Our thinking was you fill SF 95 first and send to General Counsel then go on the internet and find a lawyer and send he/she a copy of SF 95. The reason why he is doing a Section 1151 is because he would like to be service connected for these injuries. If this is wrong please let us know. Thanks!

#5 Charleese

 
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Posted 19 January 2010 - 11:57 AM

Carlie,
My son was 42 years old, he hadn't turn 43 until April 25 and surgery was April 3rd, 2008. Yes there is full medical documentation. He got his medical records pertaining to his surgery from VA last year. It contained his Surgical Information, Consult Request, Discharge Summary, Lab Result, Medication,Problem List, Progress Note, Radiology Report, Vitals, and VA Consent For Treatment/Procedure. Yes we are submitting copies of full medical documentation with SF 95 and Section 1151 claims. He's doing Section 1151 hoping they will settle and service connect him for these injuries.

We don't feel like this would be hypothetical speculation because under item 13 in Consent Form it ask: "What Are The Alternatives To This Treatment/Procedure? It goes onto list under Neck - Selective Neck Dissection "Alternatives of this procedure may include radiation therapy (using high-doses x-rays or other high-energy rays to kill cancer cells), modified radical neck dissection, or radical neck dissection. The patient may also decline treatment. So we had two options - radiation therapy or decline treatment, my son and I talked it over on day of surgery and we both felt radiation treatment would be better than going through with a full neck dissection. However, they did not confer with me. We also feel that this goes towards VA not adhering to estalished medical principles or procedures. That's why we cite them for not conferring with me. Thanks!

#6 carlie

 
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Posted 19 January 2010 - 12:25 PM

Charleese,
Thanks for your answers.
By chance, at the time your grown son signed for the surgery,
were you his legal medical surrogate for any reason?

I only ask because I think a court will ask this in the tort claim.

I feel the 1151 will go better than the tort, this is only
my opinion.

jmho,
carlie

#7 Charleese

 
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Posted 19 January 2010 - 02:28 PM

Charleese,
Thanks for your answers.
By chance, at the time your grown son signed for the surgery,
were you his legal medical surrogate for any reason?

I only ask because I think a court will ask this in the tort claim.

I feel the 1151 will go better than the tort, this is only
my opinion.

jmho,
carlie


Carlie,

No I do not have any legal papers on him. He just has me down as his Contact person. My son has never been married.

Edited by Charleese, 19 January 2010 - 02:47 PM.


#8 Berta

 
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Posted 19 January 2010 - 05:12 PM

"We do intend to get an IMO and a lawyer, but we thought you had to do an SF 95 and Section 1151 first before you hire a lawyer."

The lawyer wont handle the 1151 claim unless they deny and you file a NOD and then obtain a lawyer for that claim.

An SF 95 should be filed by a lawyer unless the statute of limits has almost ran out (SOL- 2 years from knowledge of the malpractice)


Anyone can file a SF 95 and succeed on it without an IMO and without a lawyer.

I did.

But I do not recommend doing that.

I tried to get a lawyer but none of them would even look at my evidence and a few even said I could never sue the VA- that was before lawyers could advertise their specialties in malpractice on the net. I wasnt contacting the right type of lawyer- and didnt know how to find one so I did the legal and the medical work myself.
I never even thought to get an IMO because the evidence of malpractice I found was overwhelming.

My recent (2003) claim was a re-open involving both my 1151 claim which was awarded too- as well as it involved my FTCA case- I got 3 IMos for that although I felt my evidence as a lay person was as sound as it was when I had no IMO for the FTCA/1151 claims before.

I invested 5,700 in 3 IMOs and I had a short freeby IMO too(the last 1750 they refunded half of this fee-forensic cardio doctor)because I was awarded on the new claim this spring right before the IMO doc had chance to read my evidence and I had already paid them.

In spite of the prior awards I succeeded in without IMos and lawyers I do not believe anyone should attempt FTCA themselves unless they read the FTCA laws on the internet and feel that they can go one to one with the lawyers at VA_ these lawyers (who I went round and round with recently again to finally have them agree 100% with my request for -refund of FTCA offset)
are the smartest people that the VA employs in my opinion-and they know VA case law in and out.

I studied enough cardio -neuro medical info to get up to the level of cardio docs at VA Central in order to win my initial FTCA case and then the 1151.I studied DMII enough for my new claim to know my IMO money would be recouped in an award.

Anyone willing to study the intricate FTCA regs and also medicine specific to their claim can succeed without an IMO and a lawyer too-vets and widows have done that as did.

The 1151 should have support of a good vet rep.

1151 claims are handled distinctly different from FTCA cases.
They are two separate issues.

If an FTCA settlement is awarded prior to 1151 award -send copy of the settlement papers to VA to support the 1151 claim- and vice versa.

They both involve the same medical evidence of negligence and proof of a resulting documented disability directly due to the negligence.

Consent laws are something I know nothing about.I think my husband signed consent forms for everything they did to him.
It didnt matter what he signed as they committed documented and proven malpractice.

If the results of any procedure were completely unforeseen and caused disability that is usually negligence and/or malpractice.

#9 Berta

 
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Posted 19 January 2010 - 07:08 PM

Your son has to seriously consider the offset feature of 1151 claims and FTCA claims.

I have posted considerable info here on how that goes and why sometimes it is better for a vet to pick either FTCA or Section 1151 and many times -not both.

I helped a friend get 100% P & T plus SMC with a 1151 claim and he agreed he could not handle any lump sum FTCA award instead of the comp.The choice was his and he would have succeeded in the FTCA case too but they offset any money won in a settlement under FTCA from any comp under 1151.He wanted the monthly 1151 check as he feared he could not handle a lump sum instead.(he spent 8 thousand dollars in a week on a trip to Graceland once and regretted it ever since.)

The only reason I am recouping my FTCA offset is because I proved my husband's wrongful death involved malpractice of an AO disability.It then became an AO award of direct SC and the recent letter from General Counsel I have here states this regulation clearly so that VA will refund the offset as the malpracticed death has,in essense, been changed due to malpractice of an AO disability for a SC disability directly causing his death.

I have explained these major important differences here between FTCA and 1151 claims available with a hadit search and did a radio show at SVR on all it but I forget when-if I casn find the show in the stations archives I can post a link to it-

Perhaps the BVA would have some cases that involve these FTCA offsets.

VA does not pay twice for same malpracticed disability-the reason for the offsets-

Your son needs to obtain copies of ALL VA medical records before he files a Section 1151 or an SF 95.

Once VA learns these claims have been made against them-that is when the evidence might start to disappear-as I know so well-
so make sure he has copy of his C file and all med recs to include the most current ones before they receive any claims under negligence.

I think you did say he had obtained everything.

#10 Charleese

 
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Posted 19 January 2010 - 11:27 PM

Your son has to seriously consider the offset feature of 1151 claims and FTCA claims.

I have posted considerable info here on how that goes and why sometimes it is better for a vet to pick either FTCA or Section 1151 and many times -not both.

I helped a friend get 100% P & T plus SMC with a 1151 claim and he agreed he could not handle any lump sum FTCA award instead of the comp.The choice was his and he would have succeeded in the FTCA case too but they offset any money won in a settlement under FTCA from any comp under 1151.He wanted the monthly 1151 check as he feared he could not handle a lump sum instead.(he spent 8 thousand dollars in a week on a trip to Graceland once and regretted it ever since.)

The only reason I am recouping my FTCA offset is because I proved my husband's wrongful death involved malpractice of an AO disability.It then became an AO award of direct SC and the recent letter from General Counsel I have here states this regulation clearly so that VA will refund the offset as the malpracticed death has,in essense, been changed due to malpractice of an AO disability for a SC disability directly causing his death.

I have explained these major important differences here between FTCA and 1151 claims available with a hadit search and did a radio show at SVR on all it but I forget when-if I casn find the show in the stations archives I can post a link to it-

Perhaps the BVA would have some cases that involve these FTCA offsets.

VA does not pay twice for same malpracticed disability-the reason for the offsets-

Your son needs to obtain copies of ALL VA medical records before he files a Section 1151 or an SF 95.

Once VA learns these claims have been made against them-that is when the evidence might start to disappear-as I know so well-
so make sure he has copy of his C file and all med recs to include the most current ones before they receive any claims under negligence.

I think you did say he had obtained everything.


Thanks Berta for all your help. My son and I truly appreciate it. I will see to it that my son sees your post so that he can make an informed decision. He is not service connected for anything and the reason why we thought to file Section 1151 we thought it would be a good chance for him to get service connected. Once again thanks for everything.




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