Can You Sue the VA For Medical Malpractice? Here's What You Need to Know

Jennifer A. Barry

Every patient has a right to safe and competent medical treatment. Unfortunately, this does not always happen and medical errors have become far too common. A recent series of articles published by USA Today points out that many patients treated in Veterans Administration hospitals and clinics are not receiving the timely and competent care they are entitled to.

Indeed, while the number of veterans is decreasing, the number of veterans receiving healthcare benefits through the VA is steadily increasing. So too is the complexity of the care these veterans require. As a result, the VA healthcare system has become overwhelmed and understaffed. It appears that in recent years the need to hire staff has, in some instances, led the government to hire and keep unqualified medical professionals who had long medical malpractice claims histories, and in some cases, had lost their state licenses to practice medicine. As a result, in an increasing number of cases, veterans and their dependent family members are suffering unnecessary pain and additional permanent injuries. It is not surprising then that the number of medical malpractice claims against the VA and the amount of malpractice payments made by the federal government have been steadily rising since 2004.

If you or a loved one has been harmed by negligent medical care at a VA facility, you have some of the same rights as patients treated at private non-governmental health care facilities. However, any such case is governed not just by state law, but also by a federal law known as the Federal Torts Claims Act. Therefore, while you may be entitled to pursue a medical malpractice action against the VA, there are several additional steps and exceptions that need to be addressed. As for the exceptions, active military personnel in the course of activity incident to their service or family members treated at military hospitals and clinics in foreign countries are exempted from the Federal Torts Claim Act. They still may have other options available to them so even the determination of whether you are eligible to file a claim requires experienced legal advice.

Furthermore, even those patients entitled to file a medical malpractice claim under the Federal Torts Claim Act are required to comply with several very important additional steps if they are to be successful. For example, prior to filing a medical malpractice lawsuit against the VA, you must file an administrative claim, such as a Standard Form 95.

This claim must be filed with the proper governmental agency within two years of when the negligence occurred or could reasonably be discovered. This two year time frame applies even if your state law provides a longer statute of limitations for medical malpractice actions.

Unlike typical state court complaints, this administrative claim must contain proper documentation establishing the validity of the claim and must demand a specific dollar amount in damages. It is important to note that the dollar amount claimed acts as a maximum recoverable amount in any future lawsuit.

If your claim is denied, you have six months from the denial to file a lawsuit with the federal court. This includes claims that are “constructively denied” based on government inaction. Once you reach the point where you can properly file a lawsuit with the courts, there continue to be differences. For example, there are no jury trials, only trials by judges.

There are numerous pitfalls throughout the FTCA process that can derail an otherwise meritorious claim. Therefore, if you believe you or a family member has been injured by the negligence of a medical provider at a VA medical facility, it is important that you contact an experienced FTCA malpractice attorney right away.

We at Decof, Decof and Barry, P.C. hope that you and your family never need the services of a medical malpractice attorney. But, if you believe that you or a loved one has been the victim of medical malpractice at the hands of VA personnel, it is important to seek out an attorney experienced in FTCA actions generally and VA malpractice cases specifically as soon as possible to investigate the matter and to assist you in protecting your rights. At Decof, Decof, and Barry, P.C., we have successfully assisted numerous individuals injured due to the negligence of a VA medical care provider.

Photo: © Copyright Billy Hathorn and licensed for reuse under CC BY-SA 3.0

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