It can be worth it, but get some help and pack your patience.
Washington, DCNo veteran expects to be injured because of medical negligence on the part of the VA, but it happens. If you or a family member has been a victim of veterans’ medical malpractice, don’t give up.
First, get assistance from an attorney who specializes in this kind of case and then expect it to take a while. Some recent changes in federal law (and some promising developments on the horizon) have made it easier and potentially more worthwhile to pursue a claim.
Here are 6 important things that you should know.
Yes, you can sue the VA and win
Many vets believe that they cannot sue the VA for medical malpractice. In fact, veterans who have suffered harm caused by a federal agency or employee may be able to pursue a claim under the Federal Tort Claims Act (FTCA) if they can show that:
An employee or agent of the federal government (including VA doctors and other professionals) caused the harm;
The employee’s acts or omissions were either negligent or intentionally wrongful. Medical malpractice is generally regarded as a form of negligence;
The employee was acting within the scope of his or her duties at the time of the harm; and
The veteran was hurt as a direct result of the negligence of the employee.
The sticking point has been a 1950 judge-made rule that prevents such lawsuits by “tortiously injured military service members known as the “Feres doctrine.” This is not law, but custom. It has come under increasing scrutiny in the last several years, particularly when the injury had nothing to do with active duty.
Don’t delay!
The statute of limitations on filing a VA medical malpractice claim is two years from the date of the malpractice. A properly completed, signed "Form 95, Claim for Damages, Injury or Death" must be received by the appropriate government office within two years after the malpractice is committed. If the claim is denied by the VA at the administrative level, you only have six months to file a suit in federal court. Failure to meet these deadlines can mean the end of your claim.
This is not a do-it-yourself adventure
Get a lawyer who has experience with veterans’ medical malpractice lawsuits. It is a specialized area, and the attorney who helped your nephew when he got into trouble is not the right person. Don’t let worries about paying a lawyer be a stumbling block.
The lawyers who do medical malpractice typically work on a "contingency basis.” This means that they only get paid if they win. VA malpractice attorneys are limited as to how much they can charge you. Your lawyer will advance all expenses associated with the case only to be paid back at the end if the case is successful.
Work with your medical malpractice attorney to collect your records ASAP
Some records like the details of your medical treatment or an employer’s statement about missed work can disappear with the passage of time. Other information such as an estimate of future expected medical expenses, anticipated lost future income, and a statement from your doctor or treating physician may take time to develop.
Many medical malpractice lawsuits depend on the testimony of expert witnesses. They must have an adequate opportunity to review all other records before they can render a credible opinion.
The process
The first step is to file an administrative claim (Form 95) with the VA regional counsel where the malpractice took place. The form provides an overview of your case. After the claim is submitted, lawyers for the VA often will request an in-person interview with the claimant. It is important that the claimant have their own attorney present for any interviews.
After the claim is fully submitted, the VA will have six months to respond. The agency will accept, offer to settle or deny the claim. The VA's written denial of your claim or failure to issue a response within six months – known as a "constructive denial" -- will allow you to file a lawsuit in federal court. After the lawsuit is filed, both sides must attempt to settle it. Claims often resolve at this stage.
Why you need an advocate
Remember that this is an adversarial process. The military services approve only 2-3 percent of claims filed. Of those that go to court, some have historically led to little financial recovery. One of the major reasons was a rule that disability or salary payments were offset against the award. As of May 10, 2024, that is no longer the case. Now, there is no offset against the award.
To win your lawsuit, you will need an attorney who will vigorously advocate for your claim and who is up-to-date on all changes in the law.
If you or a loved one have suffered losses in this case, please click the link below and your complaint will be sent to an elder care lawyer who may evaluate your Veterans Malpractice claim at no cost or obligation.