Claims under 38 U.S.C. § 1151

Benefits for additional disability or death caused by VA medical care is government by 38 U.S.C. § 1151. Claims under § 1151 are a different species than service-connected disability claims, but they are compensated in a similar manner as service-connected disability claims. To prove a § 1151 claim, a claimant must show that the veteran’s death or his additional disability was caused by negligent VA medical care or by some unforeseeable complication of the VA medical care.

A veteran or his representative may first want to check to see if the veteran gave his informed consent prior to the VA medical care or procedure in question. Generally, VA hospitals require patients to sign a standard written consent form, explaining the risks involved in the medical procedure. However, in some cases, especially older ones, the VA cannot produce evidence of the patient’s written consent. This failure may be a basis to win benefits under § 1151.

Another area to explore is the possibility that the complications of a VA medical procedure were not reasonably foreseeable. On this point, a veteran or his dependent can prove his § 1151 claim, without a showing of medical negligence or substandard care. Let’s say, for example, that a veteran is admitted for a routine tonsillectomy and ends up with a heart attack or stroke. Even assuming the tonsillectomy was performed non-negligently (i.e., according to the required standard of care owed to patients), nonetheless, a heart attack or stroke is not a reasonable foreseeable complication of a tonsillectomy.

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