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This Knol is provided to you to describe general processes and procedures that occur during the application for disability compensation and pension and other benefits within the Department of Veterans Affairs System. Any author you find here is not providing you with legal advice. Any information provided by this Knol or any contributor to this Knol is not intended as and should not be construed as legal advice. You should always consult an attorney to help answer specific questions regarding how VA laws apply to you and/or your situation. The summaries provided here are incomplete, and the DVA laws and regulations are subject to change. We do not guarantee and we are not liable for the accuracy or completeness of any of the information provided, or any results or outcome as a result of the use of this information.The 1151 Claim
Katrina J. Eagle, Attorney at Lawhttp://www.wildhaberlaw.com/
When a veteran is harmed as a result of medical treatment provided at a VA medical facility, there are 2 ways compensation may be available: by filing a claim for service-connected benefits under 38 USC section 1151, or by filing a Federal Torts Claims Act (FTCA) claim.
To prevail under either claim, you will need to prove negligence was committed, which is usually only done by obtaining a medical opinion from a doctor who has reviewed all of the relevant medical records in the case and is willing to put on paper that the medical care provided was "below the standard of care" required of medical professionals. To be clear, this statement cannot come from the individual harmed, but rather from a similarly experienced doctor in the same field of medicine. Of course, getting a VA doctor to put such an opinion on paper is preferred but unlikely; however, a private doctor's opinion is just as good, so long as the right points are discussed in the opinion. The person harmed will also have to show permanent damage.
There are A LOT of issues to be considered when trying to decide which to pursue, either an 1151 claim or an FTCA claim. The safest thing is to file both, and withdraw one or the other later, as the case proceeds. The most important point to note is that, for an FTCA claim, you must file the claim within 2 years of the incident (or when you "knew or should have known" that you were harmed). On the other hand, there is no statutory time period by which an 1151 claim must be filed. The second key consideration is: are you already receiving VA service connected compensation? If so, there will be an offset from any FTCA-related award. Typically, an 1151 claim can be easier to prevail on, but the key is evidence of negligence. Also, the defense often employed in these cases is that the resulting damage was assumed by and, or consented to by the patient, demonstrated by the consent forms signed by the patient pre-surgery. Note that a valid claim will overcome this defense, but it's still something to keep in mind.
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