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Nov 19 11 11:39 AM
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Nov 19 11 4:34 PM
Nov 19 11 5:11 PM
donnella wrote: Anyone out there have a successful 1151 outcome?
4.2 CLAIMS FOR 38
U.S.C.S. 1151 BENEFITS
Requirements for a Section 1151 Claim
4.2.2 No Section
1151 Benefits for Contract Care
1151 Prior to 1997 Amendment
Window of Opportunity for No-Fault Claims
a Disability Treated As If Service Connected under Section 1151
1151 and Entitlement to Ancillary VA Benefits
Section 1151 authorizes disability
compensation or DIC for injuries or deaths resulting from VA hospital care,
medical treatment, surgical treatment, examination, vocational rehabilitation,
or participation in VA CWT. A Section 1151 claim is treated like any other
claim for VA benefits, 22 and the adjudication process generally
applicable to other VA benefits applies to claims for Section 1151
benefits. 23 In contrast to an FTCA claim then, there is no
deadline or statute of limitations for filing a Section 1151 claim. 24
Typically, a veteran or surviving spouse applies for
Section 1151 benefits because VA health care or vocational rehabilitation
resulted in injury or death. 25 There is sometimes
uncertainty over what VA health care or vocational rehabilitation activities
may form the basis of a Section 1151 claim. For example, in Cottle
v. Principi, 26 the U.S. Court of Appeals for Veterans Claims (CAVC)
considered whether a veterans injury on the job was suffered as the result of
the pursuit of a course of vocational rehabilitation under Chapter
31. 27 The veteran injured his back after seven weeks
as a probationary employee with a private business. He had completed a VA
vocational rehabilitation program under Chapter 31, had
received employment assistance from the VA, including job placement assistance
and monetary benefits, and had received from the VA the work tools he was
required to have in order to maintain his employment. The VA denied Section
1151 benefits based on a VA General Counsel (GC) opinion that determined that
the veteran was not pursuing a course of vocational rehabilitation within the
meaning of Section 1151, but was merely receiving employment services while
engaged in post-training employment. 28 The
CAVC reversed and remanded the case, faulting the VA GC for failing to resolve
interpretive doubt in favor of the veteran as required by the Gardner case. 29 The CAVC stated that the GC had failed to consider the overall
structure of the VA statute and the implementing regulations. In particular,
the CAVC noted that under 38 C.F.R. 21.283(c)(1), a
veteran who is rehabilitated to the point of employability will only be
declared rehabilitated if he or she is employed in the occupational objective
for which a program of services was provided or in a closely related occupation
for at least 60 continuous days. The CAVC noted that
there had been a finding by the vocational rehabilitation counselor that the
veteran was injured within the 60-day period and thus was not rehabilitated and
was still under the program designed for his rehabilitation when the injury
The failure to provide medical treatment can be the
basis of a Section 1151 claim. For example, in Moffitt v. Brown,
a surviving spouse was apparently awarded DIC under Section 1151 because
doctors failed to give the veteran medications for
his congestive heart failure. 30 Some
Section 1151 claimants have tried to expand this concept. In Jimison
v. West, 31 the veteran was receiving VA physical therapy
for VA-performed knee surgery. He was informed that he was no longer eligible
for physical therapy because of his income level. He filed under Section 1151,
claiming that his current knee problems resulted from the cessation of physical
therapy. The CAVC rejected the veterans argument that a denial of VA health
care eligibility could be the basis of a Section 1151 claim. The court stated:
a VA adjudicative decision is not VA medical treatment. 32 The CAVC indicated that once the veteran was no longer eligible
to receive VA medical care, the VA could not be responsible for any future
medical care or lack thereof.
Section 1151 has been in existence for many years. In
1994, it was the subject of a Supreme Court decision, Brown v.
Gardner, 33 and was thereafter amended by the
Congress. 34 The requirements of the current Section 1151 may
prove significantly more burdensome for most claimants than the earlier version
of the statute.
22. See Chapter 12 of
this Manual for information on filing a claim for VA benefits.
other claims, a veterans claim for Section 1151 benefits does not generally
survive the death of the veteran. Seymour v. Principi, 245
F.3d 1377 (Fed. Cir. 2001); Landicho v. Brown, 7 Vet. App. 42 (1994). See Section
15.2.3 of this Manual.
claimants should generally be advised to file a claim as soon as possible in
order to receive the earliest effective date for the grant of benefits. See Chapter 12 of this Manual.
25. See generally Moffitt v. Brown, 10 Vet. App. 214 (1997); Ross v. Derwinski, 3 Vet. App. 141 (1992).
26. 14 Vet. App. 329 (2001).
27. 38 U.S.C.S. 1151.
28. VA. Gen. Coun. Prec. 14-97 (Apr. 7, 1997).
v. Gardner, 513 U.S. 115 (1994). The Gardner case is discussed in Section 4.2.3.
30. See Moffitt, 10 Vet. App. at 219.
31. 13 Vet. App. 75 (1999).
32. Jimison, 13 Vet. App. at 77.
33. Gardner, 513 U.S. at 115.
of Veterans Affairs and Housing and Urban Development and Independent Agencies
Appropriations Act, Pub. L. No. 104-204, 422(a), 110 Stat. 2926, 2927 (1997)
(codified at 38 U.S.C.S. 1151).
4.2.1 Requirements for a Section
Requirement of Additional Disability or Death
Requirement of VA Hospital Care, Medical or Surgical Treatment or Examination
Proximate Cause Requirement
Requirement That Medical Care Be Furnished by a VA Employee or in a VA Facility
Section 1151 requires that injury or
death be proximately caused by carelessness, negligence, lack of proper skill,
error in judgment, or similar instance of fault or by an event not reasonably
foreseeable in VAs furnishing of hospital care, medical treatment, surgical
treatment, or examination. 35 In other words,
the statute requires either fault on the part of the VA (referred to in the
statute as carelessness, negligence, lack of proper skill, error in judgment,
or other similar instance of fault) or an accident (referred to in the statute
as an event not reasonably foreseeable). The statute in effect prior to October
1, 1997, discussed in Section 4.2.3 of this Manual,
contained no fault or accident requirement. Of course, if a veteran was injured
while the old law was in effect, but filed the Section 1151 claim after the new
law took effect, the new law applies. (Both versions of the statute disallow
compensation where disability or death resulted from the veterans willful
The explicit fault or accident requirement makes
Section 1151 claims more difficult to win than previously. 37 Many claimants need to obtain a medical opinion on the question
of fault in order to succeed. Under regulations that became effective September
2, 2004, most of these claims must meet certain causation requirements, i.e., show that VA care actually caused additional
disability or death, and either establish that VA
failed to exercise the degree of care expected of a reasonable health care
provider or establish that VA furnished the care without
informed consent. 38
VAs regulatory requirements are in line with civil
medical malpractice standards, which typically require a showing of proximate
cause and consider how a reasonable health care provider would have acted under
the circumstances. 39 The main difference between a civil medical
malpractice case and a Section 1151 claim is that there is a lower standard of
proof applicable to VA claims. The standard of proof in most civil cases,
including medical malpractice, is the preponderance of the evidence standard.
For VA claims, the standard of proof is lower the benefit-of-the-doubt in order
to prevail on any issue material to a claim a claimant need only show that the
positive and negative evidence is in approximate balance. 40
The following are requirements for a successful
Section 1151 claim under the current version of Section 1151 and under
applicable regulations effective September 2, 2004. 41
35. Section 1151 claims based on VA vocational rehabilitation program
participation or VA CWT do not require evidence of fault or accident. See 38 U.S.C.S. 1151(a)(2).
Chapter 2 of this Manual for information about
claims based on the previous statute certainly were not easy to win, in part
because for many years, contrary to the statute, the VAs regulations required a
showing of VA fault. See Section 4.2.3 for an
explanation of the prior version of Section 1151 and Section 4.2.4 for
options if a claim was improperly denied under the unlawful regulation.
38. 38 C.F.R. 3.361 (2007).
in Jackson v. Nicholson, 433 F.3d 822, 826 (Fed.
Cir. 2005), the U.S. Court of Appeals for the Federal Circuit explicitly
refrained from applying common law tort principles to a Section 1151 claim
filed prior to the October 1997 amendment.
40. 38 U.S.C.S. 5107(b).
implementing regulations were in existence between the date of the 1997 change
to Section 1151 and the issuance of regulations in 2004.
184.108.40.206 The Requirement of
Additional Disability or Death
In determining whether a veteran has an additional disability the VA is
to compare the veterans condition immediately before the beginning of the VA
care or other VA activity (such as training and rehabilitation services or CWT)
to the veterans condition after such VA care or activity ends. 42 Advocates should take care that VA properly considers the issue
of additional disability. The authors of this Manual are aware of cases where
the VA has found no additional disability in Section 1151 cases based on a doctors
statement that individuals of the veterans age typically have the type of
problem that the veteran is experiencing, and therefore the veteran has no
additional disability. Advocates should ensure compliance with the regulation,
which requires that the additional disability determination be based on a
comparison of the particular veterans functioning before surgery with his or
her functioning after surgery.
Given the standard of proof applicable to Section 1151
claims, the requirement of additional disability should be characterized as
whether it is as likely as not that the veteran has additional disability.
Where a Section 1151 claim is based on a veterans death, the death itself meets
this initial requirement.
42. 38 C.F.R. 3.361(b) (2007).
220.127.116.11 The Requirement of VA
Hospital Care, Medical or Surgical Treatment or Examination
Section 1151 states that additional disability or death must have been
caused by VA hospital care, medical or surgical treatment, or examination. Jackson v. Nicholson, 43 involved a veteran who was physically assaulted
by another patient while hospitalized at a VA facility. As a result, he
developed post-traumatic stress disorder (PTSD). The Section 1151 claim was
filed prior to the 1997 amendment, when the statute required that disability or
death be the result of VA hospitalization. The U.S. Court of Appeals for the
Federal Circuit contrasted the use of the word hospitalization with the words
used in the current Section 1151, hospital care. The court reasoned that
hospitalization was broader than hospital care and that hospitalization could
include any general experience of a patient during the course of
hospitalization, including an assault by another patient. 44 In dicta, the court indicated that the current Section 1151,
using the words hospital care, would cover only VA actions in providing care
and treatment, and not one patient assaulting another patient. 45 Therefore, it appears that the current Section 1151 requires that
the additional disability or death have been as likely as not caused by VA
actions in caring for, treating, or examining the veteran.
43. 433 F.3d 822 (Fed. Cir. 2005).
F.3d at 826.
45. See also VA. Gen. Coun. Prec. 1-99 (Feb.
16, 1999) (Claimant sexually assaulted by a VA physician during a VA
examination may be entitled to Section 1151 benefits if the actions alleged
fall within the ordinary meaning of the terms medical treatment or examination.
This GC opinion considered the prior version of the law and is discussed in
further detail in Section 4.2.3.)
18.104.22.168 The Proximate Cause
Alleging That VA Care Was the Proximate Cause of Additional Disability or
Alleging That an Event Not Reasonably Foreseeable Was the Proximate Cause
of Additional Disability or Death
Alleging That Training and Rehabilitation Services or Compensated Work
Therapy (CWT) Was the Proximate Cause of Additional Disability or Death
Section 1151 explicitly requires that
the disability or death be caused by VA care and that the proximate cause of
the disability or death be VA fault or accident. VA regulations define
proximate cause as the action or event that directly caused the disability or
death, as distinguished from a remote contributing cause. 46 Proximate cause, then, requires that VA care be a direct cause of
disability or death.
VA regulations provide that actual causation must be
shown. 47 To establish actual causation the VA requires
that the VA care result in the veterans additional disability or death. A
Section 1151 claim may be based on the VAs failure to timely diagnose or
properly treat a condition, which allows the continuance or natural progress of
a disease or injury. 48 The fact that a veteran received VA care and now
has an additional disability or died is not sufficient to establish
causation. 49 Also, additional disability or death that
resulted from failing to follow medical instructions is not considered to be caused
by VA care. 50 Advocates should keep in mind that the standard
of proof for showing proximate cause in Section 1151 claims is lower than the
preponderance of the evidence standard of civil cases. Proximate causation in
Section 1151 claims only needs to be shown by a balance of the evidence. 51
In Loving v. Nicholson, 52 a veteran claimed Section 1151
benefits for a knee condition that resulted when a ceiling grate fell on his
knee during a VA examination. The Court held that the injury to the veterans
knee was coincidental to the VA examination and was not caused by it. Caused by was defined as requiring the existence
of a logical sequence of cause and effect showing that the VA examination or
treatment was the reason for the disability. 53 Of
course, this veteran may have a winnable FTCA claim despite his inability to
obtain Section 1151 benefits for the knee condition.
46. 38 C.F.R. 3.361(d) (2007).
47. 38 C.F.R. 3.361(c)(1) (2007).
48. 38 C.F.R. 3.361(c)(2) (2007).
49. 38 C.F.R. 3.361(b)(1) (2007).
50. 38 C.F.R. 3.361(c)(3) (2007).
51. 38 U.S.C.S. 5107(b).
52. 19 Vet. App. 96 (2005).
53. Loving, 19 Vet. App. at 101 (citing
Grant v. Secy of the Dept of Health and Human Servs., 956 F.2d 1144, 1148
(Fed. Cir. 1994)).
22.214.171.124.1 Alleging That VA Care
Was the Proximate Cause of Additional Disability or Death
Failed to Exercise Reasonable Degree of Care
Furnished Care Without Informed Consent
VA regulations provide two separate
methods to meet the requirement that VA medical care, treatment or examination
proximately cause disability or death:
(1) Show that the VA failed to
exercise the degree of care that would be expected of a reasonable health care
provider; 54 or
(2) Show that VA furnished the care
without the veterans (or, in appropriate cases where the veteran lacks
decision-making capacity, the veterans surrogate) informed consent. 55
54. 38 C.F.R. 3.361(d)(1)(i) (2007).
55. 38 C.F.R. 3.361(d) (2007).
126.96.36.199.1.1 VA Failed to Exercise
Reasonable Degree of Care
Advocates may meet the requirement that VA care
proximately caused the disability or death by showing that it is as likely as
not that VA failed to exercise the degree of care expected of a reasonable
health care provider. This is the standard generally used in civil malpractice
cases. Thus, it would be most helpful in a Section 1151 claim to have
expert medical testimony that a reasonable health care provider would not have
provided care or performed in the way that the veterans provider did.
188.8.131.52.1.2 VA Furnished Care
Without Informed Consent
There is an alternative to showing that VA failed to exercise a
reasonable degree of care. A second way to meet the requirement that VA care
proximately caused the disability or death is to show that it is as likely as
not that VA furnished the care without the veterans or surrogates informed
The VA determines whether there was informed consent
by referencing 38 C.F.R. 17.32, which describes VAs
procedures for obtaining informed consent. 57 Briefly,
informed consent is defined as freely given consent that follows a careful
explanation by the practitioner to the patient or the patients surrogate of the
proposed diagnostic or therapeutic procedure or course of treatment. 58 The practitioner must explain the treatment in understandable
language and discuss the expected benefits, reasonably foreseeable associated
risks, complications or side effects, reasonable and available alternatives,
and anticipated results if no action is taken. There must be an opportunity to
ask questions, to indicate comprehension of the information, and to grant
permission freely without coercion. 59 The
VA Manual indicates that express consent is consent that has been clearly
stated either orally or in writing. 60
Section 17.32(b) provides that consent may be implied
rather than express. Consent is implied when immediate medical care is
necessary to preserve life or prevent serious impairment of the health of the
patient or others, the patient is unable to consent, and the practitioner
determines that the there is no surrogate or that waiting for consent from a
surrogate would increase the hazard to the life or health of the patient or
Practitioner is broadly defined as a physician,
dentist, or health care professional who has been granted specific clinical
privileges to perform the treatment or procedure, including medical and dental
residents and other appropriately trained health care professionals designated
by VA regardless of whether they have been granted clinical privileges. 62
Thus, a claimant may establish entitlement to Section
1151 benefits if VA care, given without the patients informed consent, caused
additional disability or death.
56. 38 C.F.R. 3.361(d)(1)(ii) (2007).
informed consent regulation is described and discussed in Section 10.2.2 of this Manual.
58. 38 C.F.R. 17.32(c) (2007).
60. M21-1MR, Part IV, subpart ii, 2.G. 33(e) (last updated
Dec. 13, 2005).
61. 38 C.F.R. 17.32(b) (2007); Manual M21-1MR, Part
IV, subpart ii, 2.G. 33(e) (last updated Dec. 13, 2005).
62. 38 C.F.R. 17.32(a) (2007).
184.108.40.206.2 Alleging That an Event
Not Reasonably Foreseeable Was the Proximate Cause of Additional Disability or
VA determines whether an event was not reasonably foreseeable based on
what a reasonable health care provider would have foreseen. 63 The event does not need to be completely unforeseeable or
unimaginable, but it must be one that a reasonable health care provider would
not consider an ordinary risk of the treatment. Relevant to this issue is
whether the event was the type of risk that a reasonable health care provider
would have disclosed in connection with informed consent procedures. 64 Therefore, if the event that resulted in the disability or death
was not mentioned in informed consent documents, that would support that the
event was not reasonably foreseeable. Again, the standard of proof for this
element of a Section 1151 claim is whether it is as likely as not that the
event was not reasonably foreseeable. 65
63. 38 C.F.R. 3.361(d)(2) (2007).
64. 38 C.F.R. 3.361(d)(2) (2007).
65. 38 U.S.C.S. 5107(b).
220.127.116.11.3 Alleging That Training
and Rehabilitation Services or Compensated Work Therapy (CWT) Was the Proximate
Cause of Additional Disability or Death
A Section 1151 claim may also be based on additional disability or
death due to VAs training and rehabilitation services or CWT. 66 In such cases, the veterans participation in an essential
activity or function of the trainings, services, or CWT program must have
proximately caused disability or death. Also, the veteran must have been
participating as part of an approved rehabilitation program under 38 U.S.C.S.
Chapter 31 or as part of a CWT program under 38 U.S.C.S.
1718. It need not be shown that VA approved that specific activity
or function, as long as the activity or function is accepted as being a
necessary part of the training, services, or CWT program.
66. 38 C.F.R. 3.361(d)(3) (2007).
18.104.22.168 The Requirement That
Medical Care Be Furnished by a VA Employee or in a VA Facility
Section 1151 stipulates that the covered VA care or medical or surgical
treatment be furnished the veteran either by a Department employee or in a
Department facility as defined in [38 U.S.C.S. 1701(3)(A)]. 67 A Department employee is defined in the regulation as an
individual who is appointed by the Department in the civil service under Title
38 U.S.C.S. or Title 5 U.S.C.S., as an employee as defined in 5 U.S.C.S.
2105, who is engaged in furnishing hospital care, medical or surgical
treatment, for examinations under authority of law and whose day-to-day
activities are subject to supervision by the Secretary of Veterans
Affairs. 68 In order to be covered under Section 1151,
Department employees must be engaged in furnishing medical services; according
to the VA, the activities of non-health care workers, such as janitors,
security officers,, engineers, or administrators, are not covered. 69
A Department facility is defined by 38
U.S.C.S. 1701(3)(A) as a facilit[y] over which the Secretary has
direct jurisdiction. 70 Care provided in a VA facility may be covered
regardless of whether the medical services are administered by a Department
employee this means that activities by non-VA contract personnel working in a
VA facility may be covered. 71
67. 38 U.S.C.S. 1151.
68. 38 C.F.R. 3.361(e)(1) (2007).
Fed. Reg. 46,426, 46,431 (2004).
70. 38 C.F.R. 3.361(e)(2) (2007).
Fed. Reg. 46,426, 46,431 (2004).
4.2.2 No Section 1151 Benefits for
Contract care under 38 U.S.C.S. 1703, 1720 or 8153 (in a facility over which the VA Secretary
does not have direct jurisdiction) is not an activity covered under Section
1151. 72 Thus, it appears that a Section 1151 claim based
upon negligent fee-basis care 73 would
not be successful.
It is possible that a veteran may be eligible for
Section 1151 benefits if a VA employee provides treatment or care at a facility
under contract with the VA and that treatment or care is faulty and causes
injury. 74 Entitlement to Section 1151 benefits under these
circumstances may be possible, even though contract care is involved, because
Section 1151 refers to disability or death caused by a Department employee as
well as care in a Department facility. 75
72. 38 C.F.R. 3.361(f) (2007).
73. See Section 10.16 of this Manual for
information about fee-basis care.
way of comparison, the regulation applicable to claims filed prior to October
1997, 38 C.F.R. 3.358(f), provided that if during
contract care there was an act or omission by a VA employee that proximately
caused additional disability, that might serve as the basis for Section 1151
75. 38 U.S.C.S. 1151(a)(1).
4.2.3 Section 1151 Prior to 1997
Prior to October 1, 1997, Section 1151 required that the VA pay
compensation benefits to a veteran who, absent willful misconduct, suffered an
injury or additional disability as the result of VA hospitalization, medical or
surgical treatment, or examination or vocational rehabilitation. DIC benefits
were similarly provided, in the case of a deceased veteran, for eligible
survivors. The statute did not require that a claimant establish fault or
accident by the VA.
The absence of a fault or accident requirement made
the earlier version of Section 1151 considerably broader than the FTCA.
However, even though the statute on its face did not require fault or accident,
the VAs regulation incorporated such a requirement until it was invalidated. In
a series of judicial decisions culminating in Gardner,
courts concluded that proof of negligence was not required in a Section 1151
claim. 76 As noted earlier, the Supreme Court decided Gardner in 1994. Effective October 1, 1997, the Congress
incorporated into Section 1151 a fault or accident requirement.
As noted in Section 22.214.171.124, in Jackson v. Nicholson, 77 the
veteran sought Section 1151 benefits after she was assaulted by another patient
while hospitalized by the VA. The claim was filed while the prior version of
Section 1151 was in effect. The Court held that hospitalization had a broad
meaning and that an injury is caused as a result of hospitalization when it
occurs when one is in the hospital. 78 The
Court held that there was a sufficient causal connection between the
hospitalization and the injury because the injury would not have occurred had
the veteran not been hospitalized. The Court dismissed the VAs argument that
the assault was an intervening cause that took the event out of the scope of
Section 1151. The Court acknowledged that under common law an intervening act
precludes liability in certain situations. However, the Court stated: [W]e are
interpreting a statute here, and it is not for us to legislate beyond the plain
meaning of the statute. 79 The Court held that the phrase as a result of
hospitalization had to be given its full meaning, to include all injuries
occurring as a result of the veteran being hospitalized.
The Jackson case calls into
question a VA GC opinion rendered in a similar case. In VA. Gen.
Coun. Prec. 1-99, the VA GC addressed a Section 1151 claim based on
disability resulting from a sexual assault by a VA physician at a VA outpatient
clinic. 80 The physician treated the veteran but it was not
clear whether the assault occurred while medical treatment was being delivered.
The VA stated that the disability must result from the medical treatment or
examination itself and not from independent causes occurring coincident with
the treatment or examination. The VA indicated that a sexual assault committed
by a VA employee could be an independent and intervening occurrence; however,
if the actions alleged to have constituted an assault would be within the
meaning of the terms medical treatment or examination then the disability could
be covered under Section 1151. VA also indicated that psychiatric disabilities
were intended to be covered under the law in effect prior to October 1,
The Jackson case can be
distinguished from the VA GC opinion because Jackson addressed
the scope of the general term hospitalization while VA. Gen.
Coun. Prec. 1-99 addressed whether the assault occurred as the
result of medical treatment. However, Jackson calls into
question the continued viability of the VA GC opinion. The VA GC discussed at
length whether the sexual assault was an intervening cause of the veterans
disability, and held that an intentional tort committed by a VA employee
generally may not be considered part of treatment. Instead, it would be an
independent and intervening occurrence that prevented Section 1151
benefits. 82 Jackson dismissed the
common law principle that an intervening act precludes liability, indicating
that this principle was not relevant when interpreting the plain meaning of
In VA. Gen. Coun. Prec. 5-01,
the GC considered whether a failure by the VA to diagnose or treat a disease or
injury is covered under the version of Section 1151 in existence prior to
October 1, 1997. 83 The GC reasoned that a failure to diagnose or
treat could be the basis for benefits because it was reasonable to conclude
that Congress intended Section 1151 determinations to be governed by
established common-law principles of causation developed in the context of
medical malpractice claims. Under the common law, a failure to diagnose and/or
treat an existing condition is viewed as the legal cause of disability that
would have been prevented by proper treatment. 84 The
GC held that entitlement to Section 1151 benefits under the prior version of
the law would ordinarily require evidence that: (1) VA failed to diagnose
and/or treat a preexisting disease or injury; (2) a physician exercising the
degree of skill and care ordinarily required of the medical profession
reasonably should have diagnosed the condition and provided treatment; and (3)
the veteran suffered disability or death that probably would have been avoided
if proper diagnosis and treatment had been provided. The GC reasoned that even
though the law did not require fault, in such circumstances the failure to
exercise ordinary skill and care would be a necessary element of causation
rather than a separate and additional element of entitlement. As noted in
Section 126.96.36.199, the VA regulations applicable to current
claims allow Section 1151 benefits where VAs failure to timely diagnose and
treat caused the continuance or natural progress of a disease or injury
(assuming all other requirements are met).
As noted earlier, under the current Section 1151,
contract hospital, medical, or nursing home care under 38
U.S.C.S. 1703 or 1720 most likely could not result in Section
1151 benefits because the statute refers to actions by a VA employee or actions
in a Department facility (not a contract facility). 85 However,
the pre-October 1997 version of Section 1151 simply stated that hospitalization
or treatment awarded under any of the laws administered by the [VA] and
resulting in additional disability or death entitled the claimant to Section
1151 benefits. Despite such broad language, the regulation applicable to claims
received prior to October 1997 provides that a veteran receiving contract
nursing home care may receive Section 1151 benefits only where a VA employee
has committed an independent act or omission that caused injury. 86 The regulation requiring an independent act by a VA employee
where a veteran is injured by VA contract nursing home care may be invalid
because the statute at that time did not distinguish between VA care and
76. See Gardner v. Derwinski, 1 Vet. App. 584, 588 (1991) (holding that the fault requirement
was contrary to Section 1151); Gardner v. Brown, 5 F.3d
1456 (Fed. Cir. 1993) (CAVC decision affirmed on appeal). The VAs
appeal to the Supreme Court resulted in the determination that the VA did not
have the authority to add a fault requirement because the statute itself
clearly did not require fault.
77. 433 F.3d 822 (Fed. Cir. 2005).
78. Jackson, 433 F.3d at 825; see also VA. Gen. Coun. Prec. 7-97 (Jan. 29, 1997)
(injuries suffered as the result of . . . hospitalization not limited to
injuries resulting from the provision of hospital care and treatment, but may
encompass injuries resulting from risks created by any circumstances or
incidents of hospitalization).
79. Jackson, 433 F.3d at 826.
80. VA. Gen. Coun. Prec. 1-99 (Feb. 16, 1999).
82. VA. Gen. Coun. Prec. 1-99 at 15.
83. VA. Gen. Coun. Prec. 5-01 (Feb. 5, 2001).
84. VA. Gen. Coun. Prec. 5-01 at 6 (citing W.E. Shipley, Annotation, Proximate Cause in Malpractice Cases, 13 A.L.R. 2d
85. 38 U.S.C.S. 1151; 38 C.F.R. 3.361(f)
(2007); see Section 188.8.131.52.
86. 38 C.F.R. 3.358(c)(6) (2007).
4.2.4 Limited Window of
Opportunity for No-Fault Claims
Section 1151 claims involving VA medical care or examination filed on
or after October 1, 1997, are subject to the requirement that fault or accident
be shown. The fault or accident requirement applies to requests for reopening,
reconsideration, or revision on any basis of any previously-denied Section 1151
In earlier editions of this Manual the authors
suggested that advocates whose clients had previously been denied Section 1151
benefits under the regulations requiring fault or negligence on the part of the
VA (regulations later determined to be contrary to the language of the statute)
on the ground that no accident or fault was involved, might submit such claims
for Board of Veterans Appeals (BVA) reconsideration (if the BVA affirmed a
denial by the RO of this benefit). Another option
suggested was claiming clear and unmistakable error in the decision, on the
basis that the law in existence when the claim was denied for lack of fault or
negligence obviously did not contain a fault requirement. These options, in
order to have even a possibility of success, must have been pursued prior to
October 1, 1997. The no-fault statute applies only where an original claim for
Section 1151 benefits, or a request to reopen, revise, or reconsider on any
basis an earlier Section 1151 denial, was pending on October 1, 1997. 87
Some Section 1151 claims that were pending on October
1, 1997, are still not finally decided because adjudication of some claims was
put on hold either until Gardner was finally
decided, or for other reasons. An original Section 1151 claim, or a Section
1151 claim to reopen, reconsider, revise or readjudicate filed prior to October
1, 1997, and still pending before the VA on that date, should be decided under
the no-fault statute. 88
**Advocacy Tip** Advocates should keep an eye out for
Section 1151 claims that may have been informally raised, or inferred, to the
VA prior to October 1, 1997. If an inferred Section 1151 claim was never
adjudicated by the VA and there is no final decision that arguably failed to
consider the claim, it may be pending and the no-fault version of the statute
may apply. 89
87. In 61 Fed. Reg. 25,787 (1996), the VA addressed whether Gardner could apply retroactively, to claims finally
decided prior to the original Gardner decision issued on November 25, 1991. The
VA referenced VA. Gen. Coun. Prec. 9-94 (May 26,
1994), which determined that a court decision invalidating VA regulations or
statutory interpretations would not have retroactive effect in relation to prior
finally adjudicated claims. See also 38
C.F.R. 20.1403(e) (2007); Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005) (CUE cannot be based on a
new interpretation of a statute or regulation that arises subsequent to the VA
decision being challenged as CUE).
88. Jackson, 433 F.3d at 824 (applying pre-amendment version
of Section 1151 to claim filed before October 1, 1997).
89. See Chapters 8, 12 and 16 of this Manual for an explanation of
inferred/unadjudicated claims. But see Deshotel v.
Nicholson, 457 F.3d 1258, 1262 (Fed. Cir. 2006) (ROs failure to address an implied claim is properly
challenged through a clear and unmistakable error motion; it is not considered
a pending unadjudicated claim).
4.2.5 Evaluating a Disability
Treated As If Service Connected under Section 1151
Section 1151 mandates that the injury or aggravation of an injury be
compensated in the same manner as if such disability, [or] aggravation . . .
were service connected. This means that the rules applicable to service-connected
disabilities apply to disabilities compensated under Section 1151. 90 By implication, all of the rating principles spelled out in Part
4 of 38 U.S.C., such as the mandate to consider functional loss due to pain in
assessing disability caused by a musculoskeletal condition, 91 would apply to a disability treated as if service connected under
Section 1151. 92 The VA GC has held that 38 C.F.R. 3.322(a) and
4.22 apply to disabilities treated as if service connected under Section
1151. 93 Sections 3.322(a) and 4.22 require that when
rating a disability aggravated by service, the degree of disability existing at
the time of entry into service, if it is able to be determined, is to be
deducted from the current degree of disability unless the current degree of
disability is total. The regulations provide that if the current degree of
disability is total, no deduction is to be made. Essentially these regulations
mean that if the current disability is totally disabling the veteran will be
compensated at the 100 percent rate even though the disability existed, at some
level, prior to service. However, when these regulations are applied to a
disability compensated under Section 1151, the level of disability prior to the
VA medical treatment, vocational rehabilitation, or CWT that led to the
aggravation of the disability must be considered the baseline in determining
aggravation. If the level of disability prior to VA medical treatment,
vocational rehabilitation, or CWT is not ascertainable, or if the disability after
the aggravating incident is total, the disability should be evaluated as
totally disabling. 94
90. VA. Gen. Coun. Prec. 4-01 (Feb. 2,
91. See 38 C.F.R. 4.40 (2007).
rules that apply in evaluating the level of a disability are discussed in Chapter 5 of this Manual.
93. VA. Gen. Coun. Prec. 4-01 (Feb. 2, 2001).
4.2.6 Section 1151 and Entitlement
to Ancillary VA Benefits
A disability or death treated as if service connected under Section
1151 confers entitlement to some ancillary VA benefits. A statutory change
effective December 10, 2004, specifically entitles an otherwise eligible
veteran with a permanent and total Section 1151 disability to special adaptive
housing, a special home adaptation grant, and automobile benefits (an
automobile or automobile adaptive equipment). 95 Otherwise
eligible veterans receiving compensation under Section 1151 are also entitled
to a clothing allowance. 96
However, receipt of DIC under Section 1151 does not
entitle a claimant to the service-connected-death burial allowance because a
death under Section 1151 is not actually service connected. 97 Similarly, a Section 1151 disability does not entitle a claimant
to Service Disabled Veterans Insurance (SDVI) because the relevant statute, 38 U.S.C.S. 1922, requires VA to determine that the
disability is service-connected and disabilities resulting from VA medical
treatment are not service connected. 98
95. 38 U.S.C.S. 1151(c); Pub. L. No.
108-454 304(b), 118 Stat. 3611 (Dec. 10, 2004); see also Kilpatrick
v. Principi, 327 F.3d 1375, 1379 (Fed. Cir. 2003)
(invalidating parts of 38 C.F.R. 3.809 and VA. Gen. Coun. Prec. 24-97 and holding that under 38 U.S.C.S. 2101(a) a veteran with a Section 1151
disability may be eligible for a special housing adaptation grant).
96. VA. Gen. Coun. Prec. 100-90 (Dec. 24, 1990).
97. 38 U.S.C.S. 2307; see Mintz v. Brown, 6 Vet. App. 277 (1994).
v. Principi, 349 F.3d 1368 (Fed. Cir. 2003).
4.3 DAMAGES UNDER THE FEDERAL TORT
4.3.1 The Scope
of the FTCA
4.3.2 Pursuing an
Generally, the FTCA allows an individual
who has suffered injury or death due to the actions of a federal government
employee acting within the scope of his office or employment 99 to bring a lawsuit directly against the government and to recover
any monies due out of the federal treasury. The FTCA defines employee of the
government to include officers or employees of any federal agency . . . and
persons acting on behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the United States, whether with or
without compensation. 100 As discussed below, the FTCA requires that an
administrative claim be filed with the government agency (in this case the VA)
prior to filing an FTCA claim in federal district court. There is a statute of
limitations (a deadline) for filing an FTCA claim. 101
99. The scope of the employees office or employment requirement is
discussed in Section 4.3.1.
circuits have held that the statute of limitations is not jurisdictional and
can be tolled (suspended) for equitable reasons. See Section
184.108.40.206. However, advocates and potential FTCA claimants
are advised to act quickly and consult an FTCA expert immediately concerning
4.3.1 The Scope of the FTCA
The FTCA relaxes the doctrine of sovereign immunity, the principle that
prohibits a lawsuit against the government unless the government consents to be
sued. 102 The FTCA does not cover all injuries or deaths
that may be caused by VA employees. Basically, the claimant must prove that the
injury or death resulted from the negligence of the VA employee. 103 A claimant who does not prove negligence will
lose the FTCA action and recover nothing. 104
The FTCA exempts from its waiver of sovereign immunity
claims arising out of the combatant activities of the military or naval forces,
or the Coast Guard, during time of war. 105 The
Supreme Court broadened this exemption in Feres v. United
States, 106 creating
the Feres doctrine. Under Feres, federal courts lack subject matter jurisdiction over all
tort claims by service members against the government for injuries that arise
out of or in the course of activity incident to service. 107 Basically, this has been interpreted to preclude
any claim for injuries suffered by military personnel that are even remotely
related to the individuals status as a member of the military. 108 Generally therefore, if an individual suffers an
injury that can be related to his or her military status and files a lawsuit
requesting relief, the claim may be dismissed for lack of subject matter
jurisdiction under Feres. 109 A
service member injured by medical malpractice while on active duty may seek
only conventional VA service-connected compensation, in the same way that he or
she would seek compensation for any other type of active-duty injury or illness
incident to active service.
The FTCA exposes the government to liability for
personal injury or property damage caused by the negligence of a government
employee. 110 The government often denies liability and
contends that the alleged negligence was not committed by an employee but by an
independent contractor or the employee of an independent contractor. 111 This type of defense is possible because VA
medical centers and military medical centers frequently contract with private
universities or hospitals for physicians.
In Ezekiel v. Michel, 112 an allegedly negligent physician was in his last
year of a psychiatric residency program at the Chicago Medical School. The medical
school assigned him to work at a VA hospital for a year, during which time the
incident occurred. Although the VA hospital appointed the doctor as a resident
in psychiatry, the VA did not directly compensate him. Instead, his salary was
paid out of a fund administered by the Chicago Medical School, with several
participating medical facilities, including the VA hospital, contributing to
the fund. Although the district court initially concluded the physician was not
a federal employee, the court later reversed itself and ruled that the
physician was a federal employee at the time of the incident. Influential
factors were the degree of supervision and control the VA hospitals medical
staff had over the physician. 113
It may take years to judicially resolve the issue of
whether the individual was a federal government employee at the time of the
incident. If it is eventually determined that the allegedly negligent
individual is not a government employee, the FTCA does not apply. Of course, a
knowledgeable attorney will anticipate potential weaknesses in the case and
take steps to address themsuch as timely filing a medical malpractice suit in a
state or district court in case the physician is determined to be an
independent contractor and not a federal employee.
Another issue that may arise is whether the government
employee was acting within the scope of his or her employment when the
negligent act occurred. Scope of employment is defined as the range of
reasonable and foreseeable activities that an employee engages in while
carrying out the employers business. 114 The
FTCA requires that the Attorney General (whose agency, the Department of
Justice, defends the VA in FTCA actions in federal court) certify whether or
not the individual involved was a government employee functioning within the
scope of his or her employment. 115 However,
such certification may not be conclusive, and, at any rate, this issue is
appealable. 116 While the plaintiff waits for conclusive
judicial determinations on employee status and scope of employment issues, the
state statute of limitations on medical malpractice actions (the source of an
alternative judicial remedy for the injured veteran) may expire, and the
claimant may be left without a remedy in tort. It is therefore important that
an experienced attorney handle the FTCA claim. It will most likely be difficult
for unskilled advocates to predict successfully the outcome of the various
issues potentially involved in an FTCA claim, such as whether the FTCA is
applicable; whether the VA will ultimately be determined negligent; and whether
adequate damages will be awarded if the claim is successful. For these reasons,
claimants should be advised to file a Section 1151 claim with the VA even while
pursuing an FTCA claim. Both remedies may be pursued simultaneously.
102. See, e.g., United States v. Mitchell,
445 U.S. 535 (1980); Larson v. Domestic
& Foreign Commerce Corp., 337 U.S. 682 (1949).
For two excellent works on the FTCA, see Gregory C. Sisk,
Litigation with the Federal Government (4th ed. 2006); L.S. Jayson & Robert
C. Longstreth, Handling Federal Tort Claims: Administrative and Judicial
1346(b)(1) of 28 U.S.C.S. provides that damages will be awarded only when the
injury is caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the act or
it should be noted that the scope of the FTCA is indeed broader than 38 U.S.C.S. 1151. Section 1151 is only intended to
compensate for certain injuries or deaths that are the result of VA medical
care or other specified VA-related activities. In contrast, under the FTCA a
claimant may receive relief due to the negligent act of any VA
employee acting within the scope of their employment.
106. 340 U.S. 135 (1950).
107. Feres, 340 U.S. at 146.
v. United States, 835 F.2d 641, 644 (6th Cir.
v. United States Postal Serv., 186 F.3d 697 (6th
the definition of employee under the FTCA, see Section 4.3.
U.S.C.S. 2671 provides that under the FTCA an employeedoes not include
any contractor with the United States.
112. 66 F.3d 894 (7th Cir. 1995).
113. On appeal, the
Seventh Circuit determined that although the physician was a federal employee
and not an independent contractor, Ezekiel could not sue under the FTCA because
she herself was a federal employee and her exclusive remedy was the Federal
Employee's Compensation Act (FECA), not FTCA. For additional cases addressing
whether the negligent individual was an employee of the government, see United
States v. Orleans, 425 U.S. 807 (1976)
and Lurch v. United States, 719 F.2d 333 (10th
Law Dictionary 1348 (7th Ed. 1999).
28 U.S.C.S. 2679(d)(1), the Attorney General may provide certification
that an individually named defendant was a government employee functioning
within the scope of his or her employment. When a court receives such
certification, the lawsuit must name only the United States as the defendant
and must proceed as an FTCA action. Generally, the United States is substituted
as the defendant in place of the previously named individual or parties. See Juide v. City of Ann Arbor, 839 F. Supp. 497 (E.D. Mich. 1993).
de Martinez v. Lamagno, 515 U.S. 417 (1995).
4.3.2 Pursuing an FTCA Claim
220.127.116.11 Filing an
Administrative FTCA Claim with the VA Regional Counsel
Evidence in an FTCA Injury Claim
Presenting Evidence in an FTCA Death Claim
Process After VA Denial of Administrative Claim
Litigating an FTCA Case in Federal Court
18.104.22.168 Filing an Administrative
FTCA Claim with the VA Regional Counsel
The FTCA requires that a claimant file an administrative claim with the
VA, and receive an explicit or constructive denial of that claim, prior to
presenting the FTCA claim in federal district court. 117 The requirement to file an administrative claim
with the VA and wait a specified period for a response is a jurisdictional
prerequisite to filing in federal district court. 118 If
a claimant files an FTCA claim at a federal district court without first filing
an administrative claim with the VA and receiving an explicit or constructive
denial, the court will dismiss the FTCA claim. 119
The administrative claim is initiated by completing
Standard Form (SF) 95, which can be obtained at any VA regional office. 120 An FTCA administrative claim must be filed with
the Regional Counsel at the VA regional office (RO) that
has jurisdiction over the area in which the alleged malpractice took
place. 121 This location may differ from the location of
the veterans VA records and the current residence of the veteran. A completed
SF 95, Claim for Damage, Injury, or Death, or other written notification (such
as a detailed letter) should be sent directly to the appropriate Regional
Counsel. If the claim is made by filing a document other than SF 95, the
claimant will eventually have to execute an SF 95. 122
An administrative FTCA claim on SF 95 must include
both allegations of the injury and negligence and also a sum certain that the
veteran is seeking by way of compensation. The amount of money damages asserted
in the FTCA administrative claim should be carefully analyzed before a claim is
filed with the VA Regional Counsel because the FTCA itself and related case law
prohibit a federal court from awarding any sum in excess of the amount of the
claim presented to the federal agency unless newly discovered evidence or
additional facts warrant a larger amount. 123 Therefore,
the sum requested should cover all possible damages. 124 (The determination of damages is a calculation
that is best handled by an individual familiar with assessing damages in
medical malpractice or negligence cases.) The best general advice is that
damages should be calculated liberally for the administrative claim because
courts may not award more than the amount claimed before the agency.
**Advocacy Tip** The authors of this Manual advise lay
advocates to immediately refer the claimant to a state or local bar association
that may be able to advise the claimant on retaining counsel to handle both the
administrative FTCA claim and, if necessary, the FTCA action in federal court.
Prior to presenting the FTCA claim in federal district
court a claimant must either (1) receive an explicit denial by the VA within
six months of the filing or (2) have the administrative claim constructively
denied. 125 A claimant may regard the VAs failure to decide
the administrative claim within six months of the filing as a constructive
117. See 28 U.S.C.S. 2675(a). The VAs
regulations addressing administrative FTCA claims are at 38
C.F.R. 14.600-605 (2007).
v. United States, 935 F.2d 176, 177 (9th Cir.
119. See McNeil v. United States, 508
U.S. 106 (1993).
SF 95 is in the Forms Appendix.
121. 38 C.F.R. 14.501 (2007) sets out the jurisdictions and
addresses of the various VA regional counsels.
95 is the standard government form for filing an FTCA claim with any agency.
The VA is required to give an SF 95 to anyone who makes an inquiry about a
possible FTCA claim. Additional pertinent regulations may be found at 38 C.F.R.
Part 14 (2007). The federal courts differ on what the SF 95 must say. A
discussion of what is required on the SF 95 is found in Murrey v. United
States, 73 F.3d 1448 (7th Cir. 1996), where
the dispute involved whether the veteran gave informed consent to surgery. In
deciding whether the widow had properly raised the issue of informed consent in
her SF 95, the court decided that the administrative claim must narrate facts
from which a legally trained reader would infer a failure to obtain informed
consent. The court concluded that the SF 95 had raised the issue, even though
the term informed consent was not used. Id. at
1452-53. A similar decision is Frantz v. United States, 29
F.3d 222, 224 (5th Cir. 1994) (This court has not required plaintiffs to
specifically enumerate legal theories of recovery in their administrative
C.F.R. 14.604(b) (2007). Although the FTCA
expressly bars recovery of punitive damages, the Supreme Court has held that a
claimant may recover compensatory damages that exceed actual loss, provided
such damages are recoverable under applicable state law and that they are not
awarded for punitive reasons under the FTCA. In Molzof v. United States,
502 U.S. 301 (1992), the Supreme Court
pointed out that while punitive damages are a legal term of art, not all awards
above the actual losses should be deemed punitive.
28 U.S.C.S. 2675(a), [t]he failure of an agency to make final disposition
of a claim within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim.
22.214.171.124 Two Filing Deadlines
The administrative claim must be filed with the VA within two years
after such claim accrues. 127 (Accrue here
means to arise or to come into existence as an enforceable claim or
right.) 128 The date on which an FTCA claim comes into
existence has been the subject of debate. The general rule is that an FTCA
claim arises at the time of injury. 129 However,
where medical malpractice is involved, the claim may arise at a later date.
Medical malpractice claims arise when the plaintiff knows of both the injury
and its cause. 130 A medical malpractice claim under the FTCA
accrues when the plaintiff is, or in the exercise of reasonable diligence
should be, aware of both her injury and its connection with some act of the
Some courts apply a blameless ignorance rule when a
patient is misinformed about the reason for an unfavorable medical outcome.
This rule allows tolling (temporary suspension) of the deadline for filing an
FTCA claim in cases where the patient reasonably relied on a doctors incomplete
or inaccurate explanation about the reason for the unfavorable outcome. The
deadline is suspended until the patient knew or reasonably should have known of
the cause of the injury.
In Hughes v. United States, a
veteran was administered heparin, a blood thinner, during and after coronary
bypass surgery at a VA hospital. 132 The
veteran, who remained unconscious for several weeks during this time, had an
allergic reaction to the heparin and developed gangrene in his extremities. The
gangrene was not promptly treated and necessitated amputation of both his hands
and his legs. Had the allergic reaction been timely diagnosed, the gangrene
could have been treated and arrested. The veteran filed his FTCA complaint more
than two years after the amputations occurred. He argued that the filing
deadline should be tolled because he had relied on VAs explanation that the
amputations were necessitated by his allergic reaction to heparin and he was
not informed until much later that VAs failure to provide prompt treatment was
a cause of his injury. The U.S. Court of Appeals for the Third Circuit remanded
for the lower court to establish the cause of the injury, as well as to
determine when the veteran became or reasonably should have become aware of the
cause. 133 Several of the federal judicial circuits apply a
blameless ignorance rule in some situations in determining whether the claimant
filed a timely FTCA claim. 134
**Advocacy Tip** Courts that hear FTCA claims have
differences of opinion on whether to allow equitable tolling of FTCA
deadlines. 135. Even where a court believes that FTCA deadlines may
equitably tolled, it imposes heavy burdens on plaintiffs arguing for
tolling. 136 Therefore, advocates should advise prospective
FTCA claimants to act quickly and consult an FTCA expert immediately concerning
a potential claim.
After the claimant has filed an administrative claim
with the VA and been explicitly or constructively denied, a second deadline
must be met. The claimant has six months from the date of the administrative
denial to file an FTCA action in federal court. 137 Failure
to meet either the two-year deadline for filing an administrative claim, or the
subsequent six-month deadline for filing in federal court may bar the claim
from further review.
Unencumbered access to medical reports may help the
FTCA attorney better analyze the merits of the claim and the amount of any
damages. However, when there is an indication that a tort claim will be filed,
medical records or other information cannot be released by the VA without the
approval of the Regional Counsel. 138 The
FTCA attorney may therefore consider delaying filing the FTCA claim if there is
time within the statute of limitations, until the claimant obtains medical and
other evidence from the VA. 139
**Advocacy Tip** A statute of limitations is a
doctrine of finality what some commentators refer to as a door closing
principle. If a veteran files a suit after the statute of limitations has run,
the lawsuit will simply be dismissed. Lay advocates who do not handle FTCA
claims should not attempt to discern whether the statute of limitations has
run. Instead, the claimant should be advised to consult immediately with an
127. 28 U.S.C.S. 2401(b). As explained later in this Section, equitable
tolling of the FTCA deadlines may be possible in limited circumstances. See Krueger v. Saiki, 19 F.3d 1285 (8th
Law Dictionary 21 (7th ed. 1999)
States v. Kubrick, 444 U.S.
444 U.S. at 122.
v. United States, 775 F.2d 1491, 1494 (11th Cir.
1985); see also Barren by Barren v. United States,
839 F.2d 987, 991 (3d Cir. 1988) (statute of limitations may be tolled
until the injured party possesses facts which would enable a reasonable person
to discover the alleged malpractice); Pardy v. United States, 575 F. Supp. 1078, 1080 (S.D. Ill. 1983) (where plaintiff was
comatose, allegedly because of defendants negligence, the two-year statute of
limitations may not run because the plaintiff could not possibly know of his
injury and its cause).
F.3d 272 (3d Cir. 2001).
133. Hughes, 263 F.3d at 278.
v. United States, 843 F.2d 247, 249 (6th Cir. 1988); Wehrman v. United
States, 830 F.2d 1480, 1484-85 (8th Cir. 1987); Rosales v. United States,
824 F.2d 799, 804 (9th Cir. 1987); Otto v. Natl Inst. of Health,
815 F.2d 985, 989 (4th Cir. 1987).
a review of assorted cases addressing this question, see
Revisiting Equitable Tolling and the Federal Tort Claims Act: Putting the
Legislative History in Proper Perspective, 31 Seton Hall L. Rev. 174,
v. United States, 295 F.3d 820 (8th Cir. 2002).
U.S.C.S. 2401(b); 28 U.S.C.S. 2675(a).
C.F.R. 1.511(a)(1), 14.602(a) (2007). Under 1.511(a)(2), once an FTCA suit is
reasonably anticipated, the Regional Counsel will limit disclosure of
information to that which would be available under discovery proceedings, if
the matter were in litigation.
139. See VA. Gen. Coun. Prec. 52-91 (Apr.
29, 1991) (awards of both economic (loss of earning capacity) and noneconomic
(e.g., pain and suffering) elements of damage recovered under the FTCA will be
offset against any Section 1151 or DIC benefits awarded for the same injury).
126.96.36.199 Presenting Evidence in an
FTCA Injury Claim
The VA may require the claimant to submit the following types of
evidence to support a claim for personal injury: 140
A written report by the attending physician
explaining treatment, disability, prognosis, period of hospitalization, and
diminished earning capacity;
A report of a physical or mental examination by
a physician employed by the agency (the VA);
Itemized bills or receipts of payment for
medical, dental, and hospital expenses incurred;
A statement of expected future medical expenses
related to the injury, if any;
A statement from the claimants employer showing
time lost from employment and wages lost; or for a self-employed individual,
documented evidence of lost earnings; and
Any other evidence or information that may be
relevant to the VAs liability.
In order to better assess the administrative claim,
the VA may obtain a physical or mental examination by a VA physician. The
current regulation provides that in medical malpractice cases the Regional
Counsel may refer a claim to the VAs Under Secretary for Health for review and
for professional opinion or guidance. 141 In
most cases, the FTCA expert will direct their client to a private physician for
an examination and medical opinion. VA evidence is not conclusive in FTCA
actions and private medical expert evidence is advisable.
140. See SF 95; 28 C.F.R. 14.4 (2007); 38 C.F.R. 14.604 (2007).
141. 38 C.F.R. 14.601(b) (2007).
188.8.131.52 Presenting Evidence in an
FTCA Death Claim
The VA may require the claimant to submit the following types of
evidence and documented information to support a claim based on death: 142
An authenticated death certificate or other
valid evidence showing cause of death, date of death, and the age of the
The decedents employment or occupation at the
time of death, including earnings and the duration of his or her last
The names, addresses, birth dates, kinship, and
marital status of the decedents survivors, including those who were dependents
of the decedent at the time of his or her death;
The amount of support the decedent provided each
dependent at the time of his or her death;
The decedents general physical and mental
condition prior to death;
Itemized bills or receipts of payment for
medical and burial expenses incurred;
A physicians detailed statement specifying the
injuries suffered, duration of pain and suffering, medication administered for
pain, and the decedents condition during the time between the injury and death
if a claim for pain and suffering is made; and
Any other evidence or information that may be
relevant to the VAs liability. 143
142. See SF 95; 28 C.F.R. 14.4 (2007); 38 C.F.R. 14.604 (2007).
establish that the VA was negligent under the FTCA, the claimant must submit
evidence showing that the medical treatment provided did not conform to the
standard of care imposed on physicians in the state whose law governs the FTCA
claim. Vance v. United States, 90 F.3d 1145, 1148
(6th Cir. 1996); Polikoff v. United States, 776 F.
Supp. 1417 (S.D. Cal. 1991).
184.108.40.206 The Process After VA
Denial of Administrative Claim
If the VA explicitly or constructively 144 denies
an FTCA claim, the claimant may then bring a suit in federal district court,
and serve the Summons and Complaint on the United States Attorney General.
144. See explanation of constructive denial
of an administrative FTCA claim in Section 220.127.116.11.
18.104.22.168 Litigating an FTCA Case in
The strategy involved in litigating an FTCA case in federal court after
the VA denies an administrative FTCA claim is beyond the scope of this Manual.
State law controls some issues, such as the definition of negligence. The
Federal Rules of Civil Procedure and the Federal Rules of Evidence control many
other matters. 145
**Advocacy Tip** As in all claims for personal injury
or wrongful death, the threshold issue is whether, under state law, the
defendant acted negligently. It must then be decided whether the defendants
negligence caused harm or injury to the claimant. The claimant is required to
submit the type of evidence that is traditionally required of any plaintiff in
support of a personal injury claim to support the administrative FTCA
145. The interplay between state substantive law and federal
procedural rules in a VA malpractice case is well illustrated by Vance, 90 F.3d at 1148-49.
elaborate evidence typically presented in an FTCA case is illustrated in
Cattaneo v. United States, 956 F. Supp. 312 (E.D.N.Y.
1997) in which a former paratrooper brought an FTCA action against a VA
hospital for failure to properly insert a hip implant device. The court
concluded that the plaintiff-veteran had failed to prove, by a preponderance of
the credible evidence, that the [VA] surgeons . . . departed from accepted
medical practice.Id. at 326.
4.4 CONSIDERATIONS IN FILING
CLAIMS UNDER THE FTCA AND SECTION 1151
4.4.1 Offset of
Any Section 1151 Benefit by the Amount of a Final FTCA Award
When a veteran has been injured or dies
as a result of VA treatment, the veteran or his or her survivors should
consider filing claims under both Section 1151 and the FTCA. If the only action
by a veteran or survivor is to claim Section 1151 benefits, the statute of
limitations for filing an FTCA claim may expire before the Section 1151 claim
is processed. The filing of an 1151 claim does not constitute the filing of an
administrative claim under the FTCA. Advocates must advise their clients early
on as to their right to file both types of claims and should explain fully the
significance of exercising their dual claim prerogative.
4.4.1 Offset of Any Section 1151
Benefit by the Amount of a Final FTCA Award
Despite the fact that there are two separate processes for filing
Section 1151 and FTCA claims, the two distinct types of relief relate to each
other in one respect. If a claimant receives an award pursuant to an FTCA
claim, VA regulations require that any Section 1151 benefits be reduced by the total amount included in the FTCA judgment, settlement, or compromise. 147
Where an FTCA judgment is awarded, or a settlement or
compromise entered into on or after December 1, 1962, the VA will impose an
offset of the FTCA benefits by suspending any Section 1151 compensation or DIC
payments, effective the first of the month after the month in which the FTCA
award became final. This suspension remains in place until the sum of Section
1151 benefits that would otherwise have been paid equals the total amount of
the FTCA award.
Special offset rules apply where the FTCA judgment includes
a designated amount for adapted housing and/or automobile or automobile
adaptive equipment (called the designated amount). 148 Where
such an FTCA judgment, settlement or compromise becomes final on or after
December 10, 2004 and before the date of VAs award
of adapted housing benefits (Chapter 21) or automobile or automobile adaptive
equipment benefits (Chapter 39), the amount of the VA award will be reduced by
the designated amount. If the designated amount is greater than VAs award of
Chapter 21 and Chapter 39 benefits, the excess received under the FTCA shall be
offset against the VAs award of section 1151 benefits.
As noted, the total amount of FTCA damages awarded
under the FTCA must be offset by any Section 1151 benefits received by the
claimant, until an amount equal to the FTCA damage award has been recouped from
the Section 1151 benefits. 149 Offset is
required regardless whether the FTCA settlement or judgment compensates for
economic loss (loss of earning capacity) or for non-economic loss (for example,
pain and suffering). 150 Attorney fees, court costs, and other expenses
incident to the claim are not deductiblethe total amount awarded, including
that part of the award used for attorney fees, court costs, and miscellaneous
expenses, must be offset from any Section 1151 benefits received. 151
147. 38 U.S.C.S. 1151(b)(1); 38 C.F.R. 3.362(a)(2) (2007); cf. 38 U.S.C.S. 1318(d) (requiring offset of the total of the
amount of the money receivedpursuant to a judgment,
settlement or compromise of an FTCA or other suit for damages pursuant to death
of the veteran).
148. 38 U.S.C.S. 1151(b)(2); 38 C.F.R. 3.362(e)
(2007) (as to claims received on or after October 1, 1997); 38
C.F.R. 3.800(a)(4) (2007) (as to claims received prior to October 1,
149. 38 C.F.R. 3.362(b) (2007); Manual M21-1MR, Part
IV, Subpart ii, Chapter 3, Section D.12 (last updated Dec. 13,
150. VA. Gen. Coun. Prec. 52-91 (Apr. 29, 1991) (distinguishing
several cases that suggest offset may be discretionary or may not apply where
damages are based on pain and suffering, and holding that the full amount of
damages recovered under the FTCA is subject to offset).
151. VA. Gen. Coun. Prec. 07-94 (Mar. 1, 1994) (holding that
offset of 1151 benefits must include the entire amount of the FTCA judgment or
settlement proceeds, including the amount of any attorney fees paid out of such
4.4.2 Avoiding Offset
22.214.171.124 No Offset
until the FTCA Judgment Becomes Final
126.96.36.199 Effect of
Legal Status of Party in FTCA Civil Action
Not Applicable Increased Compensation and Secondary Service Connection
Because offset of the FTCA award reduces
the amount of Section 1151 benefits received, advocates should be aware of
several ways to avoid offset or reduce its impact. First, if a final court
order requires that benefits not be offset by VA, and that decision is not
appealed, the terms of the judgment should control and the VA should not be
allowed to offset the FTCA award. 152 Second,
if the FTCA judgment or settlement agreement specifically provides for offset
to begin on a date different from the usual effective date of offset, the terms
of the judgment control and the VA may not offset prior to the stated
date. 153 (The general rule is that offset begins the
first of the month after the month during which the FTCA judgment becomes
final.) 154 Other strategies that may avoid or lessen the
impact of offset are discussed below.
152. This was explicitly stated in the Manual M21-1 Part IV, 22.16a
(note), as to Section 1151 DIC benefits. That provision was rescinded effective
December 2005. The Manual M21-1MR does not contain a similar provision.
Advocates negotiating an FTCA settlement should consider the possibility of
achieving for clients a waiver of offset.
was explicitly stated in the Manual M21-1, Part IV, 22.05a, as to Section 1151
disability benefits. That provision was rescinded effective December 2005. The
Manual M21-1MR does not contain a similar provision. Advocates negotiating an
FTCA settlement should consider the possibility of achieving for clients a
delay in the commencement of offset.
M21-1MR, Part IV, Subpart ii, Chapter 3, Section D.13(c) (last
updated Dec. 13, 2005) (disability compensation under Section 1151); Manual M21-1MR, Part IV, Subpart iii, Chapter 3, Section G.37(a) (last
updated Dec. 13, 2005) (DIC under Section 1151).
188.8.131.52 No Offset until the FTCA
Judgment Becomes Final
The offset provisions do not take effect until the judgment,
settlement, or compromise in the FTCA case becomes final. The offset does not
apply to any portion of such compensation or dependency and indemnity
compensation payable for any period preceding the end of the month in which
such judgment, settlement or compromise becomes final. 155 Therefore, some claimants may benefit from having
their Section 1151 claim quickly approved and their FTCA claim resolved more
In some situations the VA may concede negligence but
appeal the amount of damages awarded by the court. Until the final resolution
of the FTCA case, however, the successful plaintiff is entitled to Section 1151
VA compensation or DIC benefits without an offset. A finding of negligence does
not necessarily mean that there has been a final settlement. While negotiations
and possible appeals regarding the amount of damages are ongoing, the advocate
may submit the finding of negligence to the RO in
support of his or her Section 1151 claim.
184.108.40.206 Effect of Legal Status of
Party in FTCA Civil Action
The legal status of the party in the FTCA civil action will affect
whether offset of an FTCA award is required and, if offset is required, the
amount to be offset. According to the VA GC, the offset provision of Section
1151 was designed to prevent an individual from
recovering twice for the same incident of injury or death, not to prevent
double payment by the Government. 156 The
VA and the CAVC find it significant that Section 1151 states that offset of VA
benefits is required [w]here an individual is . . .
awarded a judgment in an FTCA lawsuit. 157 The
use of the word individual has been interpreted to mean that any money received
by the FTCA claimant in an individual capacity or for
personal loss (for example, for loss of companionship) must be offset under
Section 1151. 158
The legal standing of an FTCA claimant has a direct
effect on whether offset is appropriate. 159 If
the veterans surviving spouse pursues the FTCA suit in the capacity of
administrator of the veterans estate, and not in an individual capacity, no
offset is required or authorized by Section 1151. 160 Damage
recovery by a survivor as the personal representative of the veterans estate
under a state survival statute is not subject to offset under Section 1151.
However, amounts recovered by a survivor under a typical wrongful-death statute
may be offset against DIC payable to the survivor, even if damages are actually
paid to a nominal party as trustee for the survivors. 161
This means that if the survivor files an FTCA lawsuit
in his or her capacity as the personal representative of the veterans estate
under a survival statute it may be possible to preserve the survivors
continuing entitlement to DIC benefits and avoid offset. 162 The advice of an accountant or attorney familiar
with estate taxes should be sought.
156. VA. Gen. Coun. Prec. 79-90 (Jul. 18,
157. Id.; Neal v. Derwinski, 2 Vet.
App. 296 (1992).
158. See Neal, 2 Vet. App. at 299.
v. Principi, 16 Vet. App. 89 (2002); see also VA. Gen. Coun. Prec. 3-97 (Jan.
16, 1997) (38 U.S.C.S. 1318(d) does not require
offset of amounts received pursuant to a survival action as compensation for
injuries suffered by the veteran prior to his death).
161. VA. Gen. Coun. Prec. 79-90 (Jul. 18, 1990).
survivor who is bringing the FTCA suit on behalf of the veterans estate and who
is entitled to receive DIC benefits should not be assigned any portion of the
FTCA award or settlement as an individual beneficiary. If
the survivor is named as an individual, that individuals portion of an FTCA
payment will be offset against his or her DIC payments. In Neal,
2 Vet. App. at 299, the CAVC analyzed
North Carolina state law to determine whether the 1151 claimant acted in a
representative capacity or an individual capacity in her FTCA lawsuit.
220.127.116.11 Offset Not Applicable
Increased Compensation and Secondary Service Connection
If the injury that occurs pursuant to VA treatment was a foreseeable
risk, recovery may be barred under Section 1151. 163 A
claimant may nevertheless be entitled to service-connected disability
compensation under other VA laws. First, if the injury occurred as a result of
VA treatment for a service-connected disability and caused increased disability
in that condition, the veteran may apply for an increase in his or her
service-connected compensation. Second, if the injury or disability is caused
by a service-connected disability, the veteran suffering from this disability
may apply for service-connected disability benefits under 38
C.F.R. 3.310(a) (2005). The new disability would be considered secondary
to, but part of, the original service-connected condition.
Should the claimant eventually receive relief in the
form of an FTCA settlement or award in the above examples, offset of any VA
benefits would not apply. The VA Adjudication Procedures Manual,
M21-1 Manual Rewrite (Manual M21-1MR) provides the following
A veteran is rated 10 percent disabled because of a
service-connected foot disability. The veteran receives VA treatment for the
disability. The evaluation is increased to 30 percent due to an aggravation of
the injury as a result of the medical treatment. The veteran sues the hospital
and recovers. No offset is required because the foot disability is service
connected without regard to 38 U.S.C.S. 1151. 164
The VA also provides a second example:
A veteran is service connected for a severe pulmonary
condition that requires the administration of significant doses of steroids.
The veteran later develops cataracts and claims that the cataracts are due to
the steroid treatments. The veteran files a compensation claim under 38 U.S.C.S. 1151. The rating board should consider
whether the cataracts are proximately due to or the result of a
service-connected disability so that the condition can be service connected
under 38 C.F.R. 3.310. 165 If
the rating board does grant service connection for cataracts under 38 C.F.R. 3.310, no offset is required. 166
Should a veteran receive an award of Section 1151
benefits, the offset requirement will limit the financial relief available to
the veteran. Therefore, before filing a Section 1151 claim the advocate should
consider possible alternative methods of obtaining service-connected
compensation for a disability. Secondary service connection and an increased
evaluation for an already service-connected condition are two such
163. 38 U.S.C.S. 1151(a)(1)(B).
M21-1MR, Part IV, Subpart ii, Chapter 3, Section D.13(g) (last
updated Dec. 13, 2005).
165. See Chapter 3 of this
Manual for an explanation of 38 C.F.R. 3.310 (2007)
and secondary service connection.
M21-1, Part IV, Subpart ii, Chapter 3, D.13(h) (last
updated Dec. 13, 2005).
Nov 19 11 5:22 PM
Nov 19 11 8:43 PM
Nov 21 11 2:02 AM
Nov 21 11 9:36 AM
I have a friend in the middle of one. All I can say is doing it without an attorney and one that knows would not be smart. They are not a claim. pretty complex.
The Old Medic wrote:
I know two people that successfully filed 1151 claims as a result of surgical malpractice. Both got 100%, plus they also collected on Malpractice claims against both the Va and the Physicians. The 1151 was settled as a part of the overall settlement, and they took that in order to get their wives CHAMP-VA coverage. Both of them had the same very sharp attorney in San Diego.
Nov 21 11 9:37 AM
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