Recovery for VA Medical Malpractice


The laws passed by Congress also provides redress and benefits for the results of negligent medical treatment.  When a veteran suffers disability or wrongful death as a consequence of VA medical treatment, that veteran or their surviving family may be entitled to compensation under 38 U.S.C. § 1151 in the administrative process before the VA.  Alternatively, the veteran may be entitled to damages under the Federal Tort Claims Act (FTCA).

Unlike other VA claims, Section 1151 claims for injuries arising out of VA medical treatment are not considered “service related”; however, they are compensated in a manner similar to service-connected claims.  Similar laws provide compensation when a veteran is disabled or dies as a result of VA sponsored vocational rehabilitation or work therapy.  A major benefit of this law is that claims under § 1151 may be brought at any time.  There is no statute of limitations for these claims.  This contrasts with traditional medical malpractice claims, which can be brought against the VA under the Federal Tort Claims Act (FTCA), which are subject to a two-year statute of limitations.

VA benefits under § 1151 are similar to compensation under a FTCA claim, but the 1151 claims may take longer to recover.  The amount of Section 1151 Compensation is based on a VA schedule and is related to the veteran’s degree of disability.  FTCA damages are not based on a schedule; they are determined by a settlement process or by a federal court in a lawsuit.  Compensation or damages are due if there was medical malpractice.

A Veteran who has suffered injury or harm as a result of VA medical treatment, vaccine, or vocational treatment can file claims under both the FTCA and §1151, but he will not be allowed to obtain a double-recovery.  The amount granted by one claim will be deducted from the award of a latter claim.

If you have suffered harm as a result of VA medical care, it is important to have an experienced veterans’ rights attorney evaluate your case to determine if you have a valid claim under 38 U.S.C. § 1151 or the FTCA.  If you have lost a loved one, similar claims are available if the harm came as a result of vocational rehabilitation or work therapy.  We are dedicated to helping veterans exercise and protect their legal rights.


Federal Tort Claims Act (FTCA)


The Federal Tort Claims Act (FTCA) provides a remedy to potentially allow a veteran to recover for the negligence or medical error of federal employees.  The Veteran must file an administrative claim within two (2) years of his/her injury or death with the affected federal agency.  If the VA denies the administrative claim or declines to settle the claims to the veteran’s satisfaction, then he/she may file a lawsuit in federal district court against the United States government for the injuries within six (6) months.  Ordinarily, the federal government is immune to lawsuits under the legal doctrine of “sovereign immunity.”  The FTCA is a waiver of the sovereign immunity doctrine.  The federal government can be sued when its employees are performing a job that a private employee generally performs in the same way – such as providing health care or driving a vehicle.

The FTCA applies to all claims of federal governmental negligence or medical error such as mistreatment at government operated health care facilities, and other kinds of negligence, or injuries on federal property.  So the principles discussed here apply to all FTCA claims.

A viable FTCA claim for government-provided health care can only be brought if: (1) the patient was not an active duty service person at the time of the injury; (2) the care was delivered by government employees, not independent contractors; (3) the care occurred at a facility inside the United States.  (See discussion below about claims for treatment at U.S. military facilities in foreign countries, which can be brought under the Military Claims Act.)

Anyone not on active duty who suffered from a vaccine, medical malpractice, or inadequate care at a U.S. government health care facility in the United States may bring a claim.  The malpractice may have occurred at a VA facility, a military hospital, base facility, clinic, or a federally supported clinic.

Service Member on Active Duty.

An active duty military member cannot bring a medical negligence claim for care at a military facility.  This is called the “Feres” doctrine, after the U.S. Supreme Court decision, FERES v. United States, 340 U.S. 135 (1950).

Under the 2020 National Defense Authorization Act (NDAA), an active duty service member can file a medical negligence claim with the Department of Defense.  This is an administrative claim only; there is no right to sue in federal court if the service member is dissatisfied with the government’s administrative response.

Family members of active duty military personnel – such as spouses and children – can bring claims for injuries they have suffered as a result of mistreatment at a government facility.   Military retirees also can bring claims for malpractice as long as the treatment they received came after retirement from active duty (even if the post-retirement treatment was for a service-connected injury).

What about claims against federally supported clinics and free clinics? 

The Federal Tort Claims Act also cover health clinics which receive federal funding from the U.S. Department of Health and Human Services so that patients of these clinics are potentially eligible for malpractice coverage under the FTCA.  This means that any victim of malpractice at one of these clinics comply with the FTCA claims requirements.  The doctors and nurses involved may not have actually been employees of the government when they were rendering the negligent care, but under federal law they are “deemed” to be government employees, which immunizes them from personal responsibility for the malpractice and makes the U.S. government financially responsible.  The laws that apply are the Federally Supported Health Centers Assistance Act, 42 U.S.C. 233(g)-(n), and the Patient Protection and Affordable Care Act, which extended this malpractice coverage under the FTCA to health care professionals who volunteer at free clinics, and also to free clinic board members, officers, employees, and individual contractors.

Who is the claim brought against?

The claim is brought against the United States government.  Whether the government can be held accountable for your claim depends on the status of the person who committed the wrongdoing.  That person must be a federal employee who is acting within the scope of his/her employment.  (In the military environment, federal employees will either be military personnel, or DOD civilians).

In many cases, however, the health care providers in government hospitals are not federal employees, but, rather, are independent contractors.  For example, Emergency Room physicians are often independent contractors.  These doctors are not supervised by the government, and are covered by their own malpractice insurance.  If the person who committed the negligence was an independent contractor, the party’s remedy is to sue that person or their agency directly under state law, rather than to file a claim against the government under the FTCA.  However, if the doctor is performing a ‘personal services’ contract with the government, then the FTCA may apply.

Standard Form 95 is used to present claims against a U.S. federal agency under the Federal Tort Claims Act for property damage, personal injury, or death allegedly caused by a federal employee’s negligence or wrongful act or omission occurring within the scope of the employee’s Federal employment.  The Form 95 must be completed and state a claim for money damages in a sum certain amount claimed for injury to or loss of property, personal injury, or wrongful death.  If a sum certain is not specified in block 12d on the Form 95 or in accompanying information, a submission cannot be considered to be a valid claim.

A claimant may not receive more than the amount claimed on Form 95.  For this reason, the amount claimed should be a generous estimate.  You can always recover less than the amount claimed on Form 95, but not more.  The agency will not settle a claim for more than the amount stated on the Form 95, and a federal court will not award more than the amount on the Form 95.

The courts have held that the FTCA statute of limitations begins as soon as the injury and its relationship to medical care are known.  The limitation time can expire even if the claimant does not realize that the doctors were negligent until more than two years after the injury.  For that reason, it is important to investigate serious injuries promptly.  If any employees providing services were independent contractors, then the State’s statute of limitations will apply to claims against them.

If a valid claim is not received by the Government within the statute of limitations period, then the claimant will have lost, forever, the right to make the claim and to collect money damages.  However, before deciding you are too late, consider consulting a lawyer to make sure.  There are some exceptions under the law that let injured people file a claim more than two years after the injury occurred.

Where should the claim be filed?

These claims must be presented to the federal agency whose employee’s conduct caused the injury or death.  For example, any claim for injury at a VA hospital must be filed with the VA.  A claim for injury at a U.S. Navy clinic must be filed with the Navy.

What happens after the claim is filed?

Once the claim is filed with the agency involved, the agency has six (6) months to investigate the claim and attempt to settle the case.  If the claim is denied – or if the agency takes no definitive action to settle or deny the claim within six months – the claimant may at that point file a lawsuit against the United States in Federal District Court.  If you are  not satisfied with the agency’s “final administrative action,” that is made on your claim, you can also file suit in court.  You have six (6) months from the date of the certified letter from the Government to file a lawsuit against the United States in Federal District Court.  If you do not file a law suit within that six months, you lose your right to do so, forever.

If the agency has not made a final action, but has taken more than six months since you filed your claim, you have the option of either waiting for the final agency action or going ahead and filing suit in court.

Pursuant to the provisions of the law, FTCA cases are tried before a judge, without a jury.  You are not entitled to a jury trial.

If a person was injured by a U.S. Government employee acting within the scope of his/her duties, while in a foreign country, he has basically two options.  The first option is to file a claim against the United States under the Military Claims Act (10 U.S.C. 2733).  Administratively, the MCA is very similar to the FTCA.  The main difference is that the FTCA lets you sue the government in federal court if your claim is denied or you are not satisfied with the settlement offered by the government, but the MCA gives you no access to a court.  You must accept whatever final offer the government agency makes.  Your second option is to bring a lawsuit directly against the negligent person in the country where the negligence occurred.

Types of Injuries Or Deaths That May Be Due to Negligent Medical Treatment:

  1. Failure to diagnose disorder. The failure to diagnose means that the providers fail to ascertain the correct disorder and thus properly treat it.  These types of cases usually turn on what type of treatment was available, whether it would have probably been successful given the time available;
  2. Failure to treat disorder properly. Failure to treat can result in injury or death;
  3. Birth deliveries injuries;
  4. Bedsores;
  5. Suicide;
  6. Personal or sexual actions.

Often, a patient in a hospital or nursing home setting is at risk of bedsores if he cannot change his position himself.  If he cannot move himself, then it is usually the duty of the medical professionals to help shift that person’s position.  If those professionals do not do so frequently enough, bedsores can result.

In VA and military hospitals, more often than not, there are cases which involve the failure to diagnose the illness.  Missed diagnosis cases can also involve nearly any disease or injury, – from the delay or failure to diagnose heart conditions to internal bleeding to the failure to diagnose broken bones.  No matter the type of disease or injury, the earlier the diagnosis the better.  With advances in medical technology, healthcare providers have a much easier time identifying and diagnosing diseases, especially cancer, when it can still be successfully treated.  But when doctors miss a diagnosis, the chances of a successful outcome fall dramatically.

In cancer malpractice cases, the healthcare provider certainly did not cause the patient to get some type of cancer.  Rather, the ultimate issue is whether different or earlier treatment would have changed the ultimate outcome, which is frequently death.

As a general rule – and one that is actually a bit too simplistic – if a cancer is diagnosed at an earlier stage, then there is a better likelihood of successful treatment.  Delays can happen for many reasons and the impact of a delay is quite variable.  Such cases can be further sub-divided:

  • Failure to do appropriate screening. If the standard of care mandates screening and it was not done, then there is an obvious delay.
  • Misreading of radiology or pathology studies. The radiologist or pathologist does not correctly see and report what is there.
  • Not following up on abnormalities reported in radiology or pathology studies. The radiologist or pathologist does correctly see and report an abnormality, but the clinical doctor does not follow up.
  • Ignoring potential symptoms of cancer. If a patient has symptoms consistent with cancer, then a doctor needs to investigate those symptoms.

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