Thousands of veterans suffer injuries from medication, anesthesia, diagnostic or surgical errors or other medical negligence at Veteran’s Administration hospitals or medical facilities each year. Victims and their families have the right to file a personal injury lawsuit against the VA for medical negligence under the Federal Torts Claims Act.
Under the FTCA, veterans and their families may file a medical malpractice lawsuit against VA physicians and employees if their negligent care caused the injury. Negligence occurs when a practitioner renders care that is below the local medical community’s standards. Negligence committed by a medical practitioner is medical malpractice.
Family members of patients who die from malpractice may file a wrongful death lawsuit on behalf of that patient’s estate and beneficiaries. California law governs the potential recovery for wrongful death and other damages.
Section 1151 disability claim
VA medical malpractice victims may also seek benefits through a section 1151 disability claim. Unlike a FTCA claim, these claims may be filed only if the injury occurred at a VA hospital, outpatient clinic or during a medical examination or surgery. Section 1151 claims usually require less evidence and cover fewer negligent acts than a FTCA action.
Veterans may be awarded an FTCA settlement and section 1151 benefits. But the VA will hold disability payments until it offsets the amount paid through a FTCA settlement. Unlike disability compensation, which is paid monthly, compensation from a FTCA claim is paid in a lump sum.
Filing a claim
The statute of limitations for filing a VA malpractice claim is two years from the date of the medical malpractice. A properly completed Form 95 document must be submitted to the VA Regional Counsel where the alleged malpractice occurred within that time. If that claim is denied, the patient or their family must file a claim in federal court within six months from the denial.
Form 95 contains an overview of the case, the damages being sought and justification for those damages. A legal proceeding will be limited to those damages. Additional proof may be submitted including anticipated future medical expenses, lost future income, employer’s statements about missed work and statements from treating physicians and experts.
The VA usually conducts an in-person interview with the victim or their family in wrongful death claims. It will then have six months to accept, offer to settle or reject the claim.
Within six months of denial, a lawsuit must be filed in federal court. A mandatory settlement conference will then be held.
Attorneys can assist veterans and their families prepare these claims. They can also represent them at conferences and hearings.