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.