medical malpractice

VA Malpractice Guide:

All medical professionals – from doctors to hospitals, nurses to physicians’ assistants – have a duty of care to their patients. When they violate the standard of care, it may lay the groundwork for a medical malpractice claim. When a medical professional working for a VA hospital commits medical malpractice, what recourse do you have as a patient? Let’s explore your options for suing the VA and the types of damages an injured patient can recover when malpractice occurs.

Can a Veteran Sue the VA Hospital for Malpractice?

Your local VA hospital operates under the authority of the Department of U.S. Veteran’s Affairs, which is part of the federal government. You may be wondering if it is even possible to sue a government employee for medical malpractice.  Most people believe that you can’t sue the U. S. government and its employees.  But collecting damages from the federal government is possible through the Federal Tort Claims Act (FTCA).  The Federal Tort Claims Act (FTCA) is the law that governs legal action against the federal government and its agents. The FTCA allows veterans and their family members to present claims and collect damages from the VA if medical malpractice occurs, assuming the case meets certain criteria.

  • A person can only file a claim against VA hospitals and the U.S Department of Veteran’s affairs when a federal employee or agent commits negligence within the scope of their employment.
  • When filing a claim against a VA hospital, a person is only eligible to damages that a you would be entitled to receive if you were filing a claim against a civilian provider.
  • All substantive state laws will apply where the claim accrues – including caps on damages. Punitive damages cannot be obtained against the federal government.
  • Your claim must first be timely and properly presented administratively to the VA within the statute of limitations. All administrative claim requirements must be exhausted before any lawsuit is filed.
  • In addition to establishing a medical mistake occurred, you must be able to show that the medical mistake caused serious damages.

If you have a VA medical malpractice case meets the above criteria, you may be able to collect compensation for your injuries from the federal government.

How Do I File a Complaint Against a VA Doctor?

If you were injured by the negligence of a doctor or other medical provider at a VA hospital, you may be eligible for compensation for your injuries.  Before a lawsuit can be brought under the FTCA, first you must timely present an administrative claim with the VA. You have a limited amount of time (two years from the date of the injury, with some narrow exceptions) to file your claim.  For these reasons, it is essential to have an attorney’s help. Claims against the federal government are notoriously hard to pursue and you will need assistance from an experienced VA medical malpractice lawyer who can help you navigate the process. According to reported settlements with the VA, Veterans represented by lawyers have recover two times (or more) as much as those who submit FTCA claims without lawyers. Attorney fees are capped under the FTCA at 20% if the claim resolves administratively and 25% if the claim is resolved in your favor after suit is filed.

Bringing FTCA Claims and Cases

The first step is to present an administrative claim under the FTCA with the Department of Veteran’s Affairs.  To do this, a Standard Form 95: “Claim for Damage, Injury, or Death” must be completed.  It is essential that Form 95 be completed properly because an error may limit your ability to receive a recovery.  If you believe you have grounds for a claim against the VA, act quickly, as the statute of limitations for filing a claim is two years. Your attorney will submit your case with the VA Regional Counsel where your injury occurred.

Your claim should detail the nature of your injury, the negligent actions that caused the injury, and a detailed account of compensation you believe you are entitled to. The Department of Veteran’s Affairs will not award you any more than what you ask for as a total “sum certain,” so ask an attorney for assistance in determining the proper amount of damages to seek.

To support your claim, you may be asked to provide the following:

  • Itemized bills detailing your medical expenses;
  • Detailed information pertaining for your cost of future medical care arising from the injury;
  • Medical records supporting your claim;
  • Expert reports from medical providers in the same field as the provider responsible;
  • Documents from your employer detailing missed work and associated costs;
  • Information documenting your injury such as photographs, witness statements, calendars, videos depicting disabilities and other evidence.

Case Timeline

How long does a VA malpractice case take?  As mentioned above, the statute of limitations to present an FTCA case is two years, so it is important to submit Standard Form 95 to the  Department of Veteran’s Affairs within two years of the medical malpractice event at the VA hospital.  The Regional Counsel from the VA will use the information you provide, as well as their own medical expert review to determine if the case qualifies for compensation. If your administrative claim is denied, the next step is to decide whether to request administrative reconsideration or to file a federal tort claims lawsuit in federal court. Act quickly, as you have only six months after a denial to request reconsideration or file a lawsuit.

If the VA does not deny the claim within six months from the filing of your administrative claim, this is known as a “constructive denial.” This means you can, but are not required, to file suit in federal court, but sometimes the best decision is to continue pursuing an administrative remedy.  Of course, working with an experienced VA malpractice lawyer will give you the best chance to recover compensation for your injuries.

Suing the VA for Malpractice & Damages Available

If you are unable to achieve a satisfactory settlement from your administrative claim, your lawyer may recommend that you sue the VA for malpractice in federal court.  All the information and materials you gathered to submit Standard Form 95 will be very critical to your attorney to continue to build your case.  After filing suit, your medical malpractice attorney will be required to incur additional costs of expert witnesses who are willing to testify on your behalf.

When you sustain an injury as the direct result of VA malpractice, you are eligible to pursue the same damages that would be available in a non-government medical malpractice claim, with a few exceptions. Examples of damages arising from VA malpractice include:

  • Compensatory damages related to past and future medical and attendant care, compensation for missed work related to the injury, or loss of future work capacity.
  • General damages, which include past and future physical pain and suffering and mental anguish; physical impairment, mental impairment, physical disfigurement, and loss of partnership or consortium.

There are limitations to the damages you can receive in a VA malpractice claim. For example, if the state where your claim accrued places caps on damages for medical malpractice, those caps will also apply to FTCA claims. Under a federal tort claim, punitive damages are also not allowed, even if a state would otherwise allow these damages under a standard medical malpractice claim. However, punitive damages are extremely rare in civilian medical malpractice cases and are rarely awarded anyway.

Other Limitations to FTCA Claims

If you suffered an injury at a VA hospital, other limitations may also apply. For example:

  • If you suffered an injury resulting from the negligence of a VA contractor, the FTCA may not apply automatically. For the FTCA to be relevant to your case, your attorney will have to show the provider was an employee or agent of the VA. If the provider who injured you is not a federal employee, state medical malpractice laws will apply to your claim.
  • If you incurred an injury at a federal medical facility outside of the United States, you cannot seek recourse under the FTCA, but you may be able to present a claim under the Military Claims Act. Talk to an attorney about your other options.
  • For many years, a legal doctrine called the Feres Doctrine has prevented active duty military from seeking damages for medical malpractice committed by agents of the U.S. government. Recently, the Richard Stayskal Military Medical Accountability Act changed things, and for the first time, active duty military members are able to present medical malpractice claims under the Military Claims Act.

Our Lawyers Have Texas Roots, But National Reach

Other limitations and exceptions may apply to your case. If you have suffered an injury due to medical malpractice under the care of the VA, it is crucial to seek help from an attorney with experience handling federal tort claims. Our firm has decades of experience handling VA medical malpractice claims and can help you seek maximum compensation for your injuries, pain, and suffering. To learn more about your legal options about VA malpractice claims, please contact us.

Can you sue the military?

If the victim of medical malpractice is a civilian dependent or veteran, the injured patient and their family must first present an administrative claim for their injuries. If the administrative claim is not settled, then claimants may opt to sue the government in federal court under the Federal Tort Claims Act. If the victim of medical malpractice is an active duty service member, the only remedy is to bring an administrative claim under the Military Claims Act.

Can you sue the VA hospital?

Veterans can bring administrative claims and sue the VA hospital for military medical malpractice under the FTCA. Active duty military utilizing a VA hospital due to a sharing agreement or emergency situation can bring an administrative claim against the VA under the Military Claims Act.

What is Federal Tort Claims Act medical malpractice?

The FTCA is a federal law that allows plaintiffs injured by the negligent acts of federal employees to present claims against the United States for damages. FTCA coverage extends far beyond traditional VA and military base health care. Medical malpractice resulting from care provided by Indian Health Services on an Indian reservation is also covered under the FTCA. Congress further extended FTCA medical malpractice coverage to include federally funded clinics. The federally funded clinics must apply in order to be “deemed” a FTCA covered center, and the application must be renewed from year to year, so coverage can change. Federally funded clinics that may apply for FTCA coverage include all clinics funded under Section 330 of the Public Health Service Act, including Community Health Centers, Migrant Health Centers, Health Care for the Homeless Centers, and Public Housing Primary Care Centers. In 2004, Congress extended FTCA coverage again to volunteer health professionals at certain free clinics.

How far back can I file a military medical malpractice claim?

Under the NDAA of 2020 and its statute of limitations, victims or their families have two years from the date of injury to file a claim. Those filing claims in 2020 may claim injuries from 2017 or later, but incidents occurring before 2017 are time-barred.

Can Military Members Sue for Military Medical Malpractice?

Active duty military members are not permitted to file a lawsuit in court, but with the passage of the Richard Stayskal Military Medical Accountability Act, active duty military can now bring administrative claims against the military for medical malpractice as long as the health care did not occur in a combat zone.

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