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Statute Of Limitations

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6 replies to this topic

#1 dioge73


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Posted 23 July 2012 - 09:29 AM

My husband was a Vietnam vet & passed away 10 yrs. ago. the hospital & doctors were baffled at what caused his death. Last yr.my benefits stopped as my son turned 16 & his death was not recorded as service connected. I pulled out a box of his paperwork that I started to read 10 yrs. ago but got too upset & put them away. I found specific evidence that it was the fault of the VA . I put in a claim for widow benefits & it is still in progress. ( I see no way they can deny them ) . My question is : is there a statute of limitations for a wrongful death suit ? It is written on there paperwork they were not to give him a certain drug because there could be a critical interaction with a medication he was on for years. They prescribed it anyways along with a replacement med. He was 100% TPD. Within 5 months taking this, he died, of every symptom this interaction caused. The evidence is clearly apparent . I was told I need an attorney that handles TORTE claims. a local attorney told me there was a 2 year window but was not sure if it applied for this type of claim. As of yet I have not found an attorney who can handle this or answer me. Any advise will be greatly appreciated

#2 stillhere


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Posted 23 July 2012 - 10:04 AM

Some time it depends on the state you are in. I am surprised the attorney told 2 years but I guess he could be right. I would Google wrong full death or even malpractice and see what you get for your state.

#3 SP4RVN1971


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Posted 23 July 2012 - 10:08 AM


God bless

#4 Berta


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Posted 23 July 2012 - 11:09 AM

Basically The Statute of Limits is 2 years from the claimant's awareness of the negligence that caused the death or injury for a Tort claim against the VA.

Sometimes a skillful lawyer could possibly manipulate that SOL.

I am a FTCAer/1151er.

I filed within months of my husband's death under the FTCA regulations.As soon as I knew I had evidence that the VA had caused his death.

I also filed a Section 1151 claim-there is no SOL on that type of claim.

We have considerable info here in our FTCA forum on both of these types of claims.

“I put in a claim for widow benefits & it is still in progress. ( I see no way they can deny them )

I assume you mean you have claimed his death under Section 1151, 38 USC and filed the claim ( was it your initial DIC claim) on a formal 21-534 form?

They denied my 1151 claim many times, even after I settled with the USA for my husband's wrongful death, then they finally awarded the 1151.
I can assure you this will not be easy or fast.
One good reason for filing FTCA is that you deal (or your lawyer will) deal with VA attorneys
who will actually read the medical evidence, because the VARO, in my experience refused to read what I felt was so obvious and they withheld probative medical evidencxe from their C & P examiner whose opinion denied the 1151 twice because the RO had withheld this critical evidence from him as well as even the General Counsel for the FTCA case I had.

These claims these days most often require an independent medical opinion.

Did a service rep familiar with 1151 claims help you prepare the claim?
Did they suggest getting an IMO?

Was the 1151 issue fully described on the 21-534 form as to exactly what you were claiming for DIC as to cause of death?

the hospital & doctors were baffled at what caused his death

I assume they certainly did an autopsy. Do you have a copy of the autopsy and does anything on it (such as the toxicology findings ) support your case?

Does the death certificate specifically state medication error as causing or contributing to death?

You need to contact a malpractice attorney and there are plenty on the net for any possible FTCA case-
however, in my opinion, if the SOL prevents you from filing under FTCA , a Section 1151 claim would be in order.
A claimant cannot be paid under both 1151 and FTCA for the same death/ due to same cause. In that respect a 1151 claim would be advantageous here,regardless of whether the SOL ran out or not.

He was 100% TPD

Was he 100% SC P & T for ten years prior to his death?

1151 claims as well as FTCA cases require proof of documented negligence and/or malpractice and documented
proof of resulting disability or death as a direct result from the negligence/malpractice.

"It is written on there paperwork they were not to give him a certain drug because there could be a critical interaction with a medication he was on for years. They prescribed it ..."

A VA major medication error severely compromised my husband's health for 6 years and that contributed to his death, and was one the multiple charges I made against the VA and that I had proven to them.

He had no medical condition at all ,I proved , that even warranted this medication.

Edited by Berta, 23 July 2012 - 11:15 AM.

#5 Pete53


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Posted 23 July 2012 - 12:26 PM

Good luck and Berta is correct. There may be a way to get relief from the limits either by a skillful lawyer or even Congress can sometimes fix things that are outside. Someone really needs to study the claim very carefully as the VA makes a lot of mistakes that leave the door open. As far as your dons benefits stopping at 16 is he still in school? Most benefits last for kids till they graduate from High School.

Good Luck

PS Berta is very knowledgeable about the benefits that you should get.

#6 Berta


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Posted 23 July 2012 - 01:53 PM

"As far as your dons benefits stopping at 16 is he still in school? Most benefits last for kids till they graduate from High School."

I think this widow means her Mother's benefit from SSA Survivor's Insurance benefits has expired as age 16 is the cut off date for that.
This was due to the Omnibus Reconciliation Act during Reagan's presidency.

A successful direct service connected death would restore up to 2 years of these SSA benefits under the REPs program.
REPS however does not apply to 1151 deaths.
REPS (Restored Entitlement Progran for Survivors) has no time frame limit.I also lost my Mother's SSA benefit when my child turned 16. When I succeeded in direct SC death in 2009, that trumped the 1151 award and I received full REPS benefits,over a decade after my husband died. It pays to remind here how that program works.Also REPS can be searched here.

All survivors should always raise a claim for direct SC as well as any other type of SC (such as ten year & T SC) or 1151 DIC on the 21-534 application.

This is a better explanation of the SOL for FTCA:

“ Two-year statute of limitations. The claimant has 2 years from the date the claim against the government accrued in which to present a written claim. If the claimant fails to present his or her claim within 2 years, it is barred forever. A claim accrues when the act or incident giving rise to the claim occurs, or when the claimant learns or reasonably should have learned about the wrongful nature of the government employee’s conduct. Thus, a claim arising out of an automobile accident would normally accrue when the accident occurred. A claim arising out of medical malpractice will not accrue, however, until the claimant learns or reasonably should have learned about the malpractice. “


The last sentence is what malpractice lawyers can determine.

#7 yellowrose


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Posted 23 July 2012 - 10:49 PM

you're in for a long haul with a Federal Tort Claim action. Be EXTREMELY picky when you check with attorneys. Few of them know what they are doing. I'm very sorry.