“How do I sue the VA for what they did to me?”

I used to get this question at least once a month from some disabled veteran who passionately believes that VA medical care has caused him undue suffering in one way or another. Rather than point him to the “legal aid” section of the Yellow Pages, I often assume what he wants is information on filing a claim under Title 38 U.S. Code section 1151.

The 1151 statute states, in pertinent part: “Compensation under this chapter…for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected…if the disability or death was…caused by hospital care, medical or surgical treatment, or examination…and the proximate cause of the disability or death was…carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or…an event not reasonably foreseeable.”

Simply put, this means that a veteran who is injured or dies due to negligent VA medical care will be compensated as if the injury or death was service connected---a simple explanation for an extremely complicated endeavor. Prevailing on an 1151 claim is infamously difficult. Why? Because a medical “wrong” that has been committed is not necessarily “wrongful” in the eyes of the law. A physician who provides a veteran informed consent of the necessary consequences of a surgery has not breached his duty of due care simply because the veteran ended up on the unfavorable end of the risk spectrum. Sometimes, a veteran has no choice but to have a high-risk surgery, and doctors are only required to exercise reasonable care; not perform miracles. When the worst happens, foreseeable or not, it seems only fair that someone should have to pay. Unfortunately, it will not be the VA if all reasonable steps were taken to give that veteran the best possible chance of recovery despite the unfortunate outcome.

So when should a veteran pursue 1151 compensation? If you feel that your situation warrants at least consideration of a claim, first ask yourself some basic questions:

-Were you given informed consent about the procedure (prior written acknowledgment of the risks of treatment)?

-Was the alleged wrong a necessary consequence of properly- administered medical care (e.g. paralysis after a laminectomy)

-Is the wrong commonplace in the type of care administered (e.g. a dural tear during spine surgery)?

If your answer was ‘no’ to any or all of these, you then must contemplate whether the wrong substantially contributed to the outcome. Was the wrong uneventful considering adequate care was ultimately provided? And are there any identifiable residuals that were directly caused by the wrong?

Speaking of cause, the VA will often cite “natural progression” to deny an 1151 claim when the evidence fails to support a definitive theory on how the disability at issue occurred. Your best bet is to obtain a factually based medical opinion from an expert in the field involved that explicitly rules out Mother Nature or some other coincidental event as the direct cause of disability. Causation need not be proven with clear and convincing certainty although this would be ideal; only that your theory on causation is more likely than not true. To determine whether your claim is well grounded or supported by the evidence of record, you should obtain this opinion prior to filing a claim since your entire case will rest on it. And the chances that a VA doctor will give you such an opinion in writing are as good as hitting the lottery, so be prepared to seek out a reputable private physician who will need to examine your medical records and provide an objectively derived basis for his or her conclusion. A small price to pay if your claim is eventually granted.

In closing, any legitimate 1151 claim is winnable despite the aforementioned challenges. But it all starts with an objective analysis of the evidence by an expert who must reconcile the tough questions in your case. For when you have your day in court, so to speak, the evidence alone is your most persuasive advocate. ♦