File a Section 1151 Claim for VA Medical Malpractice

File a Section 1151 Claim for VA Medical Malpractice

VA Malpractice

by Levi Newman on November 17, 2010

Veterans plagued with the despair of VA medical malpractice must file a section 1151 claim in order to receive adequate compensation.

Before the 1940s, veterans did not have several options to fight back against the federal government.  However, the present-day system offers more options to protect personal and veteran freedoms. The Section 1151 claim is one such tool. However, filing the claim is a tedious process that needs to get off to the right start.

What is the Section 1151 Claim?

Veterans, or a surviving family member, file Section 1151 claims against any veteran hospital, physician, nurse or general health care provider who has committed medical malpractice. If the VA concludes that under Section 1151 that medical negligence occurred, the affected service member receives compensation.  If the service member dies during medical treatment, the veteran’s children, spouse, other family members or estate receives the benefits.

Filing the Claim

The VA medical doctor, nurse or employee admitting his or her mistake  would be the ideal situation in a Section 1151 claim. The veteran, or family, receives compensation and a sense of closure from the acknowledgment of the hospital’s error.

In many cases, however, the VA medical provider refuses to divulge any faults, which leaves the disabled veteran and his or her loved ones in a tough spot.  They must now decide whether to pursue a VA claim against the hospital.  Remember, Federal Tort Claims Act (FTCA) act is different from a Section 1151 claim. FTCAs can only be filed within two years of the injury as opposed to Section 1151 claims that have no time limit. Also, an FTCA is a lawsuit against the United States government, meaning a veteran is the plaintiff in a court of law, represented by a lawyer and required to testify in front of a federal judge. If the veteran wins an FTCA, he or she receives monetary damages from the federal government.

Section 1151 claims are different. Compensation occurs once criteria pursuant to 38 U.S.C.S. Section 1310. Lawyers are not allowed to represent veterans in 1151 claims.  The veteran fills out a VA 1151 form with sufficient proof that the injury was as a result of medical malpractice.

The required proof is where 1151s get a little complex. A medical wrong in the eyes of a veteran might not be wrong lawfully; especially if a veteran received a warning via consent forms alerting them to the possible consequences of treatment. Complex surgeries usually come with such a form of consent, and doctors cannot always prevent injury or death during such high-risk operations. For a VA 1151 claim to be considered, the injured veteran or surviving family members would need to prove that the doctor was negligent in some manner.

Negligent behaviors include:

  • The victim did not receive a consent form relating to the risks of the procedure.
  • The injury occurred because of inaccurately administered medical treatment.
  • The injury was not related to the care received—for example, an infected incision in the leg when the veteran had open-heart surgery.

The most important part of the list above is the first one.  The most indisputable fact in an 1151 claim is that the doctor did not provide the veteran with some prior acknowledgment of the risks of treatment. After the medical wrong has occurred, the injured veteran must be able to prove that his or her life suffered from the aftermath of the surgery.

Once again, without sufficient evidentiary support of medical malpractice, the veteran’s claim is not considered.

Before filing the claim, a veteran should seek a second opinion from a medical expert with no affiliation in the VA.  A private physician can examine the veteran’s medical records and provide an objective analysis of the results.  This expert witness makes any claim viable in the eyes of the law. Gaining objective expert opinion should be the first step in filing the application.

Filling out the VA 1151 form is the next step.  Provide accurate and credible information including the expert physician’s statement.

The VA 1151 form can be found on the Veteran Affairs website.

Photo thanks to Christiana Care under creative common license on Flickr.

{ 31 comments… read them below or add one }

Kevin Canada December 10, 2010 at 6:54 pm

I have a VA 1151 claim I need help with, do you know any law firms or organizations that could help me?

Kevin Canada

631 419-6132

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RITA June 6, 2011 at 12:33 pm

Hi Kevin, Read your comment Q: How did you get the form ? can you help?

Thank’s
Rita

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Thedra July 24, 2012 at 5:10 pm

Section 1151 claims are different. Compensation occurs once criteria pursuant to 38 U.S.C.S. Section 1310. Lawyers are not allowed to represent veterans in 1151 claims. The veteran fills out a VA 1151 form with sufficient proof that the injury was as a result of medical malpractice.

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Jennifer March 1, 2011 at 3:26 am

I’m needing help as well. Did you make any contacts with a military attorney? Please email me with any helpful information. I will do the same just provide your email address.

Thanks,
Jennifer

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Steve March 3, 2011 at 10:39 pm

I am interested in filing such a claim, and interested in communicaton with anyone who might be able to help.

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Audrey Beebe March 4, 2011 at 7:09 pm

Steve, because we are not associated with the VA, we cannot actually help you file this claim. Because of the legal nature of your situation, your best option may be to find a lawyer in your area that is experienced in veterans affairs claims.

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RITA June 6, 2011 at 12:29 pm

Can anyone help me? where do I find the form sf 1151?????

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Bill Doss June 18, 2011 at 9:15 am

The form that I used was VBA-21-4138. That is the one the disabled vet rep told me to use. It is a pdf format

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Audrey Beebe June 6, 2011 at 1:06 pm

Rita, I went to the VA Forms site to look for you and couldn’t find a thing either. Further searching on the internet found this. From my experience, I believe it to be true, as there are other situations in which there is no form to fill out, but a specifically written letter is necessary instead.

this was found on the forums of hadit.com


A Section 1151 claim only has to be a letter to your VARO with your c file number on it stating :

“This is a claim under Sec 1151 , 38 USC. I believe my VA medical records will reveal that medical errors and negligence committed by the VA during my care, have been detrimental to me, and have caused me to suffer additional disability.”
This is what I recommend if it is an obvious case of negligence-
But in most cases – you can give some specifics – state them and attach copies of the med recs that support this.

Example-
VA doctor (Dr. ____) told me , after my recent admission to the ____VAMC,that the lisinopril dosage prescribed by VA for 4 years was an ineffective dosage for 4 years due to my body weight and age, to control my HBP, and this was a strong factor for the reason that I have suffered a recent stroke.
He immediately prescribed a more effective medication for my HBP.
I have enclosed copies of my Drug profile for 4 years and you can readily see the lisinopril and dosage which never changed until he prescribed the new meds.
I have also enclosed my discharge certificate from the ____ VAMC ,where I was hospitalized with the stroke,and you can see clearly that the medication and dosage for my HBP is not the same lisinopril and dosage, and also within the Med charts Dr. _______ clearly notes this change too.
The MRI summary (copy enclosed too) shows that I had a particular type of cerebral vascular accident consistent with highly elevated and inadequately controlled high blood pressure.

words to that affect- if you give details —focus it sole on cause (wrong meds, wrong surgery, wrong diagnosis etc) and affect- how it gave you additional disability.

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Rita Bandur June 6, 2011 at 7:30 pm

Thank you Audrey, Great help!

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clarence bynes June 11, 2011 at 5:17 am

To all you good people there is help to get the form find a veteran service officer at your va hospital he will get the 1151 forms for you and help you fill them out and mail it in for you.that is how i got my claim in with out any hardship.
c.bynes jr

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Bella June 15, 2011 at 2:31 pm

We also utilized a Veteran Service Office at the local VA hospital to help us with the process of filling out and filing the 1151 form. We are currently awaiting a decision from the VA. We did however, retain a lawyer for the FTCA lawsuit but not the 1151 claim, since lawyers cannot represent veterans or their families in 1151 claims.

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Marshall August 21, 2011 at 9:07 am

Hi,
I ‘m lookinf for an Attornry to fille a tort claim . Can you give me the name of ypur lawyer?
The VA doctor missed that I’ve had lung cancer for the last 7 Years. Time is running out for me. Meed a lawyer Now!

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DEBRA July 19, 2011 at 3:37 pm

YES, I HAVE INFORMATION FOR ALL OF YOU, FIRST OF ALL GO TO COMPENSATION & PENSION OFFICE @ VA HOSPITAL NEAR YOU AND THEY WILL WRITE IT UP IN MILITARY TERMS FOR YOU…A LETTER WILL BE SENT BACK TO YOUR ADDRESS @ THAT TIME GATHER THE EVIDENCE , BRING IT BACK TO COMP & PEN…THEN WAIT FOR YOUR CLAIM TO BE PROCESSED.. YOU CAN CHECK STATUS @#800-827-1000..THERE ARE 99 CLAIMS OFFICES THAT WILL PICK UP & WILL HAVE ACCESS TO YOUR CLAIM.@ THAT TIME YOU WILL GET A RUN DOWN OF YOUR CLAIM… GOD BLESS AMERICA…………HOPE THAT HELPS….

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john December 8, 2011 at 4:16 pm

listen very close , filling an 1151 claim is one of the most difucult claims to prove , i have been fighting a 1151 claim from 2006 , the va will do every thing to deny this type of claim, you can also file a95 law suit but you need a great lawer and only have two years to file. as to a 1151 i was treated based on some one elses records and was severly injured , ,i have filed three yes three apeales , the last of was with a washington judge , and was then put through what is called a remand and iam still waiting for some answers , so be prepared for a long fight , if you are truely in the right . pease and good luck

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Eric December 11, 2011 at 12:40 pm

Was scheduled for surgery on Right Shoulder back in March 2008,put on a waiting list,for some reason (not clear) a Federal Employee took me off of it.Filed a 1151 for the right shoulder due to the fact that it was my dominant arm and without the use of it left me disabled.Provided a Civilian Othropedic Doctor with the medical records from the Asheville,NC VA Hospital he reviewed them and said they misdiagnosed you.Which all that information along with the VA Medical Records where provided to the Social Security which i have received since June 2008.But still waiting for the VA to decide that they messed me up not doing the surgery.If this happen in the real world then my case would have been over already,but its the VBA lazy method of handling things.By the way no help from DAV for this ,said they had there own agenda to do.

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Pat W. February 15, 2012 at 3:15 pm

I am trying to locate this form and am unable to find it to print out. Help would be appreciated. I tried va.gov forms and put in section 1151 claim and tried medical malpractice as well. Am frustrated.

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Patti Alderson February 28, 2012 at 8:16 pm

If I read the comments right, Section 1151 claims and FTCA lawsuits are not mutually exclusive; e.g., if you file an 1151 claim, you can also file an FTCA lawsuit, whether you prevail or lose either one?
Thank you.

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Jesse Hawn April 4, 2012 at 9:19 pm

I need some help please. My dad is a Vietnam vet. He has been using the VA hospital for about 12 years. I am a health care worker in respiratory for 20 years. I have noticed his health has been going down, so I got him a private doctor. He has been denied a lot of claims like CHF and other heart problems which could have been from agent orange and they tell him every visit that he is doing well. On 3/28/2012, he went to the private doctor that I got for him here at home and on the first appointment the DR. said that he is in CHF and some of his meds that the VA was giving him could have shut his kidneys down. Today, we found out he has a aortic aneurysm that is 5cm in size. His new doctor has got him an appointment this Friday 4/06/2012 with a cardiovascular surgeon. All this time the VA hospital has been telling him nothing is wrong with him, but in one visit a private physician has found a lot wrong with my dad. We need help if anyone can help us or give any information as to what we can do please call me or email 256-577-5779 is my cell phone. My dad may not even be a candidate for surgery, might not make it through surgery. Please help us, my dad has always bragged about the VA but he just did not know they were not looking out for his health and well-being. He loves his country. This is wrong in every way. I work for a privat hospital and every veterin deserves the best health care. Also, today the VA called to let him know they needed to schedule an appt to have his pacemaker checked because their machine was broke that they check it with over the phone. My mother told the VA today that they would most likely not be coming back to them today. If anyone has advise on our situation, I would greatly appreciate hearing it.

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Privatesteve April 10, 2012 at 7:52 pm

I went in for surgery on my left leg woke up and foot on my rright leg was amputated won a tort claim but VA keeps saying Due to the progression of my disease. I have been told I may never get the doctor who used me as a school class with 15 people in operating room at time of my surgery and seven other procedures done on me with negative results left me with a scronectomy and destroyed sex life. And ten month hospital stay deserves nothing at all says the Va. How hard is it to win a 1151 almost impossible in my experience I won in federal court and they say negligence on doctors part yet I lose in regional court going off to a travel board next week after seven year fight. Good luck to all sometimes you can’t even win if they kill you

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Teresa lee April 11, 2012 at 8:36 am

I sent a sign permission form in nov. 2011. To get my husbands medical records to start a 1151. Is there anyway I can find the progress that is being made. My husband died at home but the VA doctor was neglectful and I did received on a law suit. Thank you

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Levi Newman April 13, 2012 at 9:27 am

Call a local VA rep to find out the status of your paperwork.

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Jacque May 2, 2012 at 2:26 pm

Iam working on an1151 claim with the spouse of a deceased veteran. We were asked to get a medical opinion on caused of death; however no doctor is willing to give one. Can anyone help with this problem?

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Frances Garrett May 20, 2012 at 8:00 pm

Jacque,
I am havingthe same problem as you in needing a doctor to make the statement Better THAN NOT THE MEDICATIONS COULD HAVE BEEN THE RESULT OF MY HUSBANDS DEATH, even though the meds the VA continued to give my husband had been recalled by the FDA 2 years and they still prescribed it to him ,,,, please give me a call, and let’s keep each other up to date 602 279-2939

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Frances Garrett May 20, 2012 at 8:56 pm

In looking on the internet I came up with this firm that assist with 1151
David Huffman
1 800 238-4237

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DALE ELLIS June 19, 2012 at 9:38 am

NEED HELP – 5 ITEMS IN REMAND— ONE IS A -1151 , POST STRESS, HEARING,TEETH, AND AID & ATTEN—- PLEASE ANYONE HELP — nevergrowup@juno.com — THANK YOU VERY MUCH

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Calvin Howard June 19, 2012 at 4:33 pm

In 2009 I had to undergo 37 days of radiation after having my prostrate removed in Dec.1998. Somewhere duringh the 37 days radiation burned a whole in my badder causing me to urinate blood causing me to be rushed to the emergency room at the VA hospital. I was in VA hospital for over 7-1/2 weeks (June – August). When they went in to repair my bladder they punched a whole in my kidney causing emergency care from specialist to be called in to repair this damage. As a result of these surgery’s my family was told to expect the worse since my condition was deteriating. I had to be placed in a state of an induced coma. As I read through the whole medical report there was an admission of a mistake being made. as a result of everything my bathroom had to be fitted as if I was handicapped. I lost all strenght in my legs and had to be taught how to walk. There is more and I need some help to bring closure to this mess.

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ken crosby June 29, 2012 at 7:46 pm

The Va hospital that finally decided start treating me when i walked in with a news crew didnt have the chicago regional office does not have it im not sure where to get this form and i was told to fill it out by the Veteran sub comittee along with a SF95

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Bill Baker July 28, 2012 at 11:53 am

I had a stomach ulcer and was treated over a year.. had biosies.. at first biopsies came back atipical after more test and biopsies they came back normal, also my ulcer was healing up. The VA said I needed a Bill Roth 2, a Vegotomy and Rouz-N-Y, after all this I had a Gatric pacemaker implanted.. My aurgument is, If my ulcer was healing, not bleeding, and biopsies were normal, why did they cut half my stomach out and do the vagotomy that left me with Gastroparesis and had to have a Gastric pacemaker.. during all this surgery I almost died. It looks like none of the surgery was needed at all.

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Bill Baker July 28, 2012 at 11:57 am

test

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Teresa lee September 13, 2012 at 10:43 am

Yes my husband died in 2000″ I got a lawyer outside the VA hospital and they settled with me. Now I am trying to file a 1151 claim and they tell me I can’t because I got a lawyer outside the VA. I would have to pay back the money I received in the settlement if I was awarded the 1151 claim. Also the money I received from the lawsuit was taxable I was never told that and I have never received anything from the IRS. Is this true ?

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