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Suing the Veterans Administration for Malpractice


While everyone will agree that Veterans of our military deserve the highest degree of medical care that can be provided by the Department of Veterans Affairs, the reality is that the VA Health Care System is a disgrace. Reports of Veterans having to wait months or even years for routine appointments have become a common occurrence. The level of care provided by the VA to our Veterans pales in comparison to that provided by private hospitals. Veterans are dying while they wait for tests and treatment that could save their lives.

As a result, the number of malpractice claims that have been settled by the VA has tripled in the past five years. More than $1 billion in settlements has been paid out by the VA in the past decade. Our new President has vowed to improve conditions for our Veterans in VA Hospitals, but little has been done so far and until drastic measures are taken to improve the quality of care, incidents of Veterans being injured by malpractice will continue to rise.

Most lawyers are not familiar with the procedure for representing a Veteran in a medical malpractice case against the VA. There are special laws and rules that must be strictly followed, which bear no resemblance to the normal rules for filing a medical malpractice case against private doctors and hospitals in state or even federal court. These rules are set out in the Federal Tort Claims Act (FTCA), 42 U.S.C. 1346 et seq. , and their requirements can lead to quite a bit of confusion.

The process for suing the VA under the FTCA starts with the filing of a written claim with the Department of Veterans Affairs as a precondition to starting a malpractice lawsuit. Generally, the time limit for filing a claim is two years from the date of its accrual.  A form of discovery statute is recognized as far as the statute of limitations governing FTCA claims, as is the concept of extensions of time for continuous treatment.

There is no set time limit within which the VA must respond to a claim.  However, if the VA fails to act on the claim within 6 months, the claimant is permitted (but not required) to commence a lawsuit in federal court against the United States Government. To confuse matters, if the VA DOES respond to the claim with either an offer or a denial, the claimant MUST file his lawsuit within 6 months of receiving that response from the VA. So the time to start the lawsuit after filing the claim is dependent on whether the VA responds to the claim or not.

Note that the initial claim under the FTCA is required to be filed with the VA, but when the time comes to commence the lawsuit, you do not sue the VA; rather, the U.S. Government is the defendant named in the lawsuit and not the VA.    Many claimants and their lawyers have been tripped up by these requirements, filing their claims with the U.S. Government or  naming the VA as the defendant in their lawsuit, potentially resulting in dismissal of their cases.

Another odd aspect of the FTCA is that although the case proceeds in federal court, subject to all the procedural requirements of the Federal Rules of Civil Procedure, and although the defendant is the federal government itself, damages to be awarded to the claimant are governed by state law.  The FTCA applies the substantive law of the state where the malpractice occurred.   This obscure rule creates the incongruous result that Veterans with identical cases injured by the VA in different states will often receive vastly different awards.  For example, a Veteran injured in California is subject to that state’s $250,000 cap on non-economic damages, while a Veteran with the same exact injury in New York is not subject to any limitation on his recovery.

One final aspect of claims under the FTCA is that there is no right to a trial by jury.  Instead, the case is tried before a federal judge, who not only oversees the procedural aspects of the case but also rules on the amount of damages that the Veteran will receive.   Aside from the obvious potential conflict of interest (the trial judge is a federal employee deciding a case brought against his employer), most, but not all, federal judges are conservative in nature and not likely to be as sympathetic to an injured claimant as a jury might be.

Undertaking the representation of a Veteran in a malpractice case against the VA can be a daunting task for a lawyer who has never done so before.  That lawyer should be sure to familiarize himself with the special laws and rules that govern these claims, so as to ensure the best possible outcome for himself and his client.