Posted byBerry LawonMarch 20, 2023inVeterans Disability
Millions of Americans, including Veterans and their family members, trust the VA to provide them with competent medical care.
However, mistakes inevitably happen, and the VA’s physicians or medical officers can intentionally or inadvertently commit medical malpractice. When this happens, you need to know your options for legal recourse and how to pursue them.
While you can’t sue the VA, you can file an 1151 claim. Read on to learn more about VA 1151 claims and how they can lead to regular disability compensation payments.
1151 Claims Explained
Put simply, an 1151 claim is a type of VA claim that may only be filed by a Veteran suffering from an injury or illness that results from medical malpractice during a VA medical treatment. It refers to 38 USC 1151, which states that Veterans are entitled to disability, medical benefits, or compensation if they are ever harmed under VA care.
Department of Veterans Affairs “care” includes the following practices or procedures:
- A medical or surgical treatment received from the VA
- A health exam given by the VA or a VA-employed professional
- A vocational rehabilitation course that is administered through the VA
- Any compensated work therapy program (CWT) treatments received at a VA facility
In essence, if you’re injured in any health care or hospital care situation under the care of the VA, you can file an 1151 claim. A successful 1151 claim may result in monthly compensation from Veterans benefits, including back pay for injuries received some time in the past.
Qualifying for an 1151 Claim
A Veteran or their family member may qualify to make an 1151 claim if they can prove a “proximate cause.” A proximate cause indicates that the VA deliberately or negligently caused a disability or worsened an existing disability because of its medical care.
For example, if the VA performs minor surgery on a disabled Veteran, but the surgery results in a bodily injury that exacerbates the disability’s symptoms, that Veteran could qualify as a claimant for an 1151 grievance. It doesn’t matter if the medical malpractice from the VA was intentional or due to negligence.
“Negligence” in a legal context typically means inattention or lack of proper care. For instance, a health care provider showing up to a procedure inebriated is negligence. The VA typically approves 1151 claims that show carelessness, negligence, errors in judgment, lack of proper skill, or other faults on the part of the VA when furnishing hospital or medical care or examinations.
When Might an 1151 Claim Be Necessary?
An 1151 claim may be necessary if the VA negligently causes a disability or exacerbates the symptoms of an existing disability for a Veteran.
Veterans trust the VA to provide them with good medical care. When the VA fumbles this responsibility, Veterans may need additional or new disability compensation to grapple financially with their new situation.
Say that a Veteran receives an injury because of a surgery botched by a VA physician. That Veteran is now disabled. The VA must now provide the Veteran with disability compensation. To get that compensation, the Veteran files an 1151 claim with the assistance of knowledgeable attorneys.
Can Spouses or Dependents File 1151 Claims?
Spouses and dependents can file 1151 claims. The spouses or dependents of Veterans may file 1151 claims for disability benefits if they directly received a medical examination or other medical care from the VA/physicians or medical officials employed by the VA. However, they cannot file 1151 claims on behalf of their related Veterans.
Are 1151 Claims Secondary Service Connected Disabilities?
No. Secondary service-connected disabilities are disabilities caused by a primary service-connected disability or injury you’ve already proven to be caused by your military service.
A good example is insomnia caused by post-traumatic stress disorder (PTSD); you developed PTSD during your time in the military, then developed insomnia as a secondary condition to that PTSD.
1151 claims are treated as claims for primary disabilities or injuries.
Disability Ratings for Conditions Connected Under an 1151 Claim
When awarding compensation in 1151 claims, the VA issues that compensation in the same way it issues compensation for all service-connected disabilities. In other words, you’re not limited in terms of your disability compensation amounts just because you filed an 1151 claim. Claims can range from a 0% disability rating to a 100% disability rating.
According to the most recent update to the VA disability payment scale, the maximum amount of money you can receive from a successful 1151 claim is $3621.95 per month as a single individual and with a disability rating of 100%.
If a surviving spouse or dependent files an 1151 claim because a related Veteran died due to VA negligence or medical malpractice, they don’t receive disability benefits. Instead, they receive DIC or Dependency and Indemnity Compensation from the VA. However, they still need to file an 1151 claim to get these benefits.
How Can You Make an 1151 Claim?
Before making an 1151 claim, ensure that you qualify by checking for these key criteria:
- You have a currently and medically diagnosed disability or long-term condition
- A negative event or occurrence happened while under VA hospital, medical, or surgical care or occurred while you were in an examination furnished by the VA
- A distinct medical nexus links the occurrence to the medical disability, and the occurrence in question was the result of negligence, an error in judgment, or some other fault on the part of the VA
If you aren’t sure whether you qualify, contact lawyers to see whether you have grounds for a successful claim.
Filing an 1151 claim follows the same process as filing any other VA disability pay claim. Veterans begin by submitting VA Form 21-526. On that form, Veterans have to specify that the new claim is meant to seek out benefits under Section 1151.
Veterans follow a similar process at this stage as filing another disability claim. They have to provide supporting evidence showing causation between a VA medical event and a currently diagnosed disability or injury. Surviving spouses or dependents follow the same process.
The right attorneys can help your 1151 claim in a variety of ways. For example, they can ensure that you gather sufficient evidence to strengthen your 1151 claim, streamlining the process and preventing your claim from being returned for one reason or another.
They can also ensure that you file your paperwork correctly so that paperwork isn’t sent back because of a preventable error. If the VA denies your claim for one reason, your attorneys can review the VA’s response and help you draft an appeal document. You can appeal 1151 claims the same way you can appeal other VA disability pay claims.
Are 1151 Claims the Same as Federal Tort Claims?
1151 claims are not the same as federal tort claims. Federal tort claims are lawsuits levied directly against the VA for harm caused by negligence on behalf of someone employed by the VA. For instance, if a doctor causes a medical issue in a Veteran they are treating, the Veteran may recover and file a federal tort claim against the VA to recover compensation.
1151 claims are VA claims; they are not lawsuits. Federal tort claims are lawsuits, so they may offer a broader way to recover compensation. However, federal tort claims are only sometimes advisable. In many cases, an 1151 claim is easier to file and more likely to succeed (since they are often less costly than a lawsuit for both sides in the dispute).
Since they are lawsuits, federal torts require more evidence to win and recover compensation successfully. While they are harder to win, federal torts could result in a larger lump sum payout if they are successful.
That said, you should speak to knowledgeable Veterans law attorneys before assuming that a federal tort claim is your best avenue to recover damages for your injuries or disabilities.
Contact Berry Law Today
Filing an 1151 claim against the VA may be necessary if you or a loved one have been injured due to medical malpractice by the VA or its employed physicians/medical officials. A successful 1151 claim could allow you to recover new or additional disability compensation payments.
It’s never a good idea to file an 1151 claim alone. Berry Law’s experienced Veterans law attorneys can assist with filing and ensure you know what to expect from start to finish. Contact our law firm today to learn more or to begin a free consultation.
Sources:
VA Title 38 U.S.C. 1151 Claims | Veterans Affairs
