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Tort Claim Denied For Statue If Limitations Reconsideration Request


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#1 ytheydothis

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Posted 09 June 2012 - 06:29 AM

I got a reply back denied under sec 2401. I informed a lawyer who i was trying to get to take the case she told me they handle these claims all the time but they dont take cases once they are denied. Do that sound crazy maybe its me.....

The medical eviedence showed i had surgery on the wrong level of the spine. I didnt find out until by way of a mri 12 yrs later. I know their is a discovery rule in their somewhere..but was glad to see that this was the only reason it was denied I thought the lawyer would of jumped right on it. Im still looking for an attorney and I will get a strong IMO.


My question is when i ask for a reconsideration can i let a lawyer handle that or do i have six months to request that or sixty days

#2 Berta

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Posted 09 June 2012 - 09:04 AM

"I got a reply back denied under sec 2401. I informed a lawyer who i was trying to get to take the case she told me they handle these claims all the time but they dont take cases once they are denied. Do that sound crazy maybe its me....."
Title 28 USC § 2401(b)

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.




"The medical eviedence showed i had surgery on the wrong level of the spine. I didnt find out until by way of a mri 12 yrs later. I know their is a discovery rule in their somewhere..but was glad to see that this was the only reason it was denied I thought the lawyer would of jumped right on it. Im still looking for an attorney and I will get a strong IMO."


Did you file the SF 95 within 2 years of your knowledge that the surgery involved a potential medical error?

Anyone who discovers or believes they have been malpracticed on by the VA should get a copy of their Med recs right away, then get an IMO, and then if the IMO supports malpractice they need to get a lawyer.

They can file the SF95 themselves if they fear the SOL could run out before they get their med recs and an IMO and a lawyer-
there is SF95 info here in our FTCA forum.

However if the SOL ran out, there is no recourse.

You could however file a Section 1151 claim. Info on that too ere in our FTCA forum.

Section 1151 claims have no SOL.

I just won an additional 1151 award from my original 1151/FTCA matters this past January, and the veteran,who did not live long enough to see his proper VA comp (they malpracticed on my husband and caused his death)
was eligible for the additional 1151 award back to 1992.

There is a 1151 template in our FTCA forum here for this type of VA claim.

#3 Berta

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Posted 09 June 2012 - 10:01 AM

In December 2010 you stated here:

o still havent put in a 1151 will they rate it in the proper rating or will i have to submitt another claim under 1151 “

It appeared that you had requested a secondary rating for the additional disability due to the negligence?

What is the status of that claim?

VA has no obligation to consider any issue under 1151 unless the claimant tells them to by clearly filing a claim under Section 1151.

38 USC.

I think I gave you the same 1151 advice in Dec 2010 as I did here today.

Have you filed a Section 1151 claim at all over the past 2 and 1/2 years?

Edited by Berta, 09 June 2012 - 10:04 AM.


#4 ytheydothis

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Posted 09 June 2012 - 03:36 PM

Ok Berta i filed the 1151 claim along with other issues it been 24 months without a decision and used the templates here. I discovered i had been malpratice on in June of 2010 by way of a Mri..I had surgery in 1997 took 12 yrs to find this out i thought the discovery rule applied so i filed the sf 95 in may of 2012 well within the two year statue and got a denial back in June of 2012 a fast three week process...Since they denied on statue of limitation maybe i should leave alone and wait on the 1151 process Im thinking if you win a sf 95 dont it offset the 1151 claim.... I know im getting in deep water should i still persue a lawyer to argue that i had no way of knowing until the June 2010 Mri?

If I previal on the 1151 claim will it retro back to 1997? or when i filled the 1151 claim? thanks

#5 Berta

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Posted 10 June 2012 - 08:11 AM

Fighting a SOL denial needs a lawyer's expertise.


“.Since they denied on statue of limitation maybe i should leave alone and wait on the 1151 process Im thinking if you win a sf 95 dont it offset the 1151 claim.... “

Yes and that is why it is often disadvantageous to file both FTCA and 1151.

I invested most of my FTCA settlement because of the offset factor to my DIC.That way I used some interest every month until I was awarded DIC.



The only way around the offset is to prove SC as well, in addition to 1151/FTCA for the same disability but my claim is the only case I know of that was successful that way.

The VA, after another battle with me, refunded my entire offset last year.

The offset regs are here somewhere.

You will need a strong Independent Medical Opinion for the 1151 claim.

These days I foresee no way anyone can win 1151 without an IMO.

Or any FTCA case.

The VA Cannot offset a Section 1151 award to any established SC award.

They might try to 'combine' the percentages but I think that would be a CUE if they did that.I am really not sure on that.