How do I win a Section 1151 Claim?
Section 1151 requires that an 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 VA’s furnishing of hospital care, medical treatment, surgical treatment, or examination. In the majority of Section 1151 claims, assuming that the disability or death was not the result of the veteran’s willful misconduct, entitlement hinges upon a claimant showing that:
- The disability or death was caused by hospital care, medical or surgical treatment, or examination; and
- The care was furnished either by a VA employee or in a VA facility; 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or it was an event not reasonably foreseeable.
What is meant by “proximate cause?”
Section 1151 explicitly requires that VA care cause the disability or death, and that the VA fault or accident be the “proximate cause” of the disability or death. VA regulations define “proximate cause” as “the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.”
VA regulations also provide that “actual causation” must be shown. The fact that a veteran received VA care and now has an additional disability or has died is not sufficient to establish causation. For example, a veteran claimed Section 1151 benefits for a knee condition that resulted from a ceiling grate falling on his knee during a VA examination. The Court held that the VA examination was coincidental to the veteran’s knee injury and did not cause the injury. The Court defined “caused by” 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. It should be noted that this veteran may be able to recover damages through an FTCA claim, despite his inability to obtain Section 1151 benefits for his knee condition.
A Section 1151 claim can also be based on the VA’s failure to timely diagnose or properly treat a condition, which allows for the continuance or natural progression of a disease or injury. However, additional disability or death resulting from a veteran failing to follow medical instructions is not considered to be caused by the VA.
Another way to meet the requirement that VA care proximately caused disability or death is to show that it is as likely as not that the VA furnished care without the veteran’s informed consent. Informed consent is defined as “freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment.” 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. Consent may also be implied. Consent is implied when immediate medical care is necessary to preserve life or prevent serious impairment of the health of the patient or others, and the patient is unable to consent, and the practitioner determines 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 others.
What is meant that an event is “not reasonably foreseeable?”
VA determines whether an event was not reasonably foreseeable based on what a reasonable health care provider would have foreseen. 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 treatment risk. When informed consent documents fail to mention the event that resulted in the disability or death, they provide support that the event was not reasonably foreseeable.
What will the VA pay me if I win my 1151 claim?
Once the VA awards Section 1151 benefits, the VA will compensate and evaluate the disability as though it were a service-connected disability, applying the Schedule for Rating Disabilities to assess the appropriate compensation level. The level of disability prior to the VA medical treatment that led to the aggravation of the disability must be considered the baseline in determining aggravation and should be deducted from the evaluation of the disability.
Veterans with a permanent and total Section 1151 disability are entitled to special adaptive housing, a special home adaptation grant, and automobile benefits.