Author Archive
Veterans: Understanding Veterans Medical Malpractice
October 19th, 2010. By Kristine B
Anyone who has dealt with Veterans Affairs can tell you that the system can be complex and maddening, much like so many other government-operated systems. Dealing with Veterans Affairs medical malpractice can be an exercise in frustration, for many reasons. Today, Pleading Ignorance aims to shed some light on VA medical malpractice.
First, the lawyer stuff: not every attorney will take medical malpractice claims against the VA. Why? Because when you sue the VA you are suing the federal government, and such a lawsuit has its own special rules and regulations. So, if you feel you have a medical malpractice case against the VA, you have to choose an attorney carefully. (Note, when you fill out a claim form here at LawyersAndSettlements.com, the claim form goes to an attorney who specializes in that area of litigation.)
Now, you might think that only incidents that occur at VA medical centers are covered by VA medical malpractice, but that’s not necessarily true. If you were sent by a VA doctor to an off-base provider, you would still be filing a case against the VA because the medical care was provided off-base pursuant to a VA directive. So, if the VA played a role in your medical care—even if it was to send you to an off-base provider—you might still have a VA medical malpractice claim.
To be eligible, the victim—the person who suffered the medical malpractice—must have been registered with the VA system, received treatment from the VA (or had the VA direct them to off-base treatment) and suffered injury or death because of negligence in the system.
It is not only veterans who fall under the VA directive, however. Any of their dependants Read the rest of this entry »
VA Claim Denied? Attorney Ben Stewart Gives Advice
October 13th, 2010. By Kristine B
Just about anyone who’s a veteran has had a Veterans Affairs claim at some point in his or her life. Those who haven’t filed a claim likely will at some point in the future. And yet, despite the claims process being somewhat simple, the appeals process can be complex, and if your claim is denied, it’s good to know what rights you have.
Today, Pleading Ignorance looks at how to file a VA Claim—and what to do if it gets denied. We asked attorney Ben Stewart of Stewart Law, P.L.L.C. for some pointers.
So, to start, let’s assume you’ve filed your VA claim. Once you’ve filed that paperwork, the VA will make a decision about what benefits will be provided to you, if any. So far, so good.
What to do if the VA Denies your Claim
But, if the VA denies all or part of your claim, you have options—three in fact:
1. Reapply for benefits
2. Request a review of the decision
3. File an appeal
While you can try to reapply for benefits or request a review of the VA’s initial decision on your claim, you may have more success if you file an appeal. If you appeal the decision you may want to have a lawyer help you. This is because a lawyer who is experienced in veteran claims will know the applicable regulation that can be used to overcome a denial. The lawyer can also represent you in a hearing before the VA appeals board.
Making things complex is that laws concerning veterans’ benefits are constantly changing. Some of those changes are retroactive and some are only applicable from the date they are put in place. With retroactive changes, you may have previously been denied benefits for a specific condition but can now reapply and receive back benefits from the date of your previously denied claim.
When the changes are only applicable from the date they are put in place, it doesn’t matter if you previously met the new requirements for benefits, you won’t receive back benefits. But, you may still be eligible to start receiving benefits from the point the regulation was changed going forward.
For example, the VA has recently relaxed the rule for establishing claims of veterans post-traumatic stress disorder (PTSD). The move makes it easier for veterans to prove they have a disability due to service-related stressors. Veterans who did not qualify for PTSD benefits before, or who were denied benefits under previous rules, may now qualify. But, they will not receive benefits retroactive to their first claim. Rather, they will receive benefits starting from the date of the application filed after the rule change.
Furthermore, some changes in benefits related to Agent Orange use in Vietnam will be retroactive to the filing date, meaning veterans should file their claims as soon as possible.
“File now,” says Ben Stewart, attorney at Stewart Law, P.L.L.C. “Even if your claim is denied, you can start the claims period. That way, if it is accepted later, your benefits will go back to the original date when the claims were denied.”
New medical conditions added to the list of those linked to Agent Orange include heart disease, Parkinson’s disease and B-cell leukemia.
“There are new regulations all the time, that’s why veterans should consider a veteran’s benefits attorney who has been tracking changes in the law and advocating for veterans,” Stewart says.
J. Benton Stewart II, attorney at Stewart Law, P.L.L.C., is an experienced prosecutor, municipal magistrate and civil trial lawyer. Stewart Law specializes in the following areas of practice: Professional Negligence, Legal Malpractice, Securities Litigation, Class Action Litigation, Products Liability, Personal Injury and Wrongful Death.
Are Outside Sales Reps Exempt from Overtime Pay?
October 5th, 2010. By Kristine B
It’s one of the great conundrums facing employees today: determining whether or not they are exempt from overtime pay. For some, the answer is simple but for others, the answer is much more difficult. Many companies try to classify employees as exempt from overtime pay for obvious reasons—it saves them money. But that doesn’t make it right. This week, Pleading Ignorance looks at outside sales representatives and explains why (or why not) they should be paid overtime. 
Outside sales representatives spend a lot of their time talking with clients and potential clients. They explain the company’s products, prices and the benefits their products have over a competing product. They may or may not leave free samples with the client (or potential client) and may follow up later to encourage the potential client to purchase the product.
Outside sales representatives are considered exempt from overtime pay, but there is a catch to this. Some sales reps may be misclassified as exempt from overtime pay when, in fact, they are not.
To be exempt from overtime pay as an outside sales person, the person has to directly affect the sale transaction.
Here’s an example: I market pens to you (let’s say you’re a doctor who needs pens). Because of my marketing of the pens, you decide to buy them. I have directly affected the sale of the pens and am, therefore, considered an outside sales person.
Now, consider pharmaceutical sales reps: They go to a doctor’s office and market a drug, drug X. But, the doctor doesn’t actually purchase drug X. All the doctor does is prescribe Read the rest of this entry »
Mandatory Arbitration Lacks Sexiness of Gekko’s Greed Speech, but…
September 29th, 2010. By Kristine B
With Wall Street: Money Never Sleeps just out, you can’t think about securities fraud and financial wrongdoing without thinking about Gordon Gekko and his classic line about greed (it’s good)…but let’s step back from fantasy and consider a bit of reality…
So you’ve invested some money and now you’re concerned that you got some bad financial advice. Or you’re concerned that your financial advisor failed to follow your advice, churned your account or invested your money in stocks that weren’t appropriate for you. Your initial instinct might be to say, “Let’s sue the guy!” but in reality, what you have to say is the less succinct but more realistic, “Let’s file a FINRA arbitration against the guy!” It’s screenplay dialog just waiting to happen, no?
So just what is FINRA arbitration you ask? Well, it’s today’s Pleading Ignorance topic, so here goes…
Here’s the thing, and it’s the most important thing you need to know. When you signed a contract with your brokerage firm, you almost definitely agreed to a clause regarding mandatory arbitration. This means that if you have a dispute with your broker or brokerage firm, you have to file an arbitration—you can’t file a lawsuit (except in certain conditions, such as in a class action).
FINRA is the Financial Industry Regulatory Authority and it basically oversees the financial industry (hence the name). Its members have to agree to mandatory, binding arbitration to resolve disputes. So that means that if you have a complaint against your financial advisor or brokerage firm, you file an arbitration.
Although it sounds like a downer—you don’t often hear about multimillion dollar awards in arbitration cases—there are some very good points to mandatory, binding arbitration:
1. Arbitration often takes less time than a lawsuit. Lawsuits, from the date the lawsuit is Read the rest of this entry »
Agent Orange: Is this Really How We Treat our Veterans?
September 15th, 2010. By Kristine B
Last month, the Department of Veterans Affairs said it was increasing the number of health problems linked to exposure to Agent Orange. If you’re not familiar, Agent Orange was a dioxin-laden defoliant used in Vietnam to take away the foliage so the Viet Cong had nowhere to hide. It was previously linked to a variety of health problems, including cancers.
New regulations allow the VA to presume that veterans who served in Vietnam between January 9, 1962 and May 7, 1975 were exposed to Agent Orange. This means the veterans only have to show they were in Vietnam during that time—they do not have to prove they were exposed to Agent Orange. The new regulations also add medical conditions such as Parkinson’s disease and ischemic heart disease to the list of conditions already linked to Agent Orange.
Basically, the new regulations mean people who were previously denied disability benefits are now eligible to receive those benefits. All they have to do is show they have one of the conditions linked to Agent Orange and show they were in Vietnam during the specified years.
Some people question the move, saying that these medical conditions could have developed in the veterans as they aged—even if they weren’t exposed to Agent Orange. They say the new regulations will cost too much money—money the government doesn’t have.
When do we actually start taking proper care of our veterans? In addition to horrific conditions at some of the VA hospitals, claims of veteran medical malpractice, poor treatment and denials of disability pay, now people don’t want to pay for medical conditions the veterans suffered simply because it could cost too much money?
Haven’t the veterans done enough for the US to warrant a small amount of money for their pain and suffering? Never mind that we used to write off veterans post-traumatic stress (PTSD) and other psychological trauma experienced by veterans—who faced horrors many Read the rest of this entry »
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