Can veterans or their families sue the VA for malpractice or wrongful death?

Can veterans or their families sue the VA for malpractice or wrongful death?
by Terry Richards

The answer is YES  But prior to 1946, Americans could not sue the United States for personal injury or wrongful death caused by employees of the federal government because the federal government had immunity from civil suits.  Victims of this negligence generally had to rely on members of Congress to pass individual bills of relief.  However, after World War Two, as a direct response to the claim that citizens were left with inadequate remedies against the federal government, Congress passed the Federal Tort Claims Act (FTCA). 

When Veterans or others sue the VA or any other agency of the Federal Government, they are actually suing the United States of America.  And once in Federal District Court the claimant is known as the Plaintiff, and the United States of America is known as the Defendant. Additionally, there are no provisions for jury trials in the FTCA.  Therefore, only a Federal Judge will preside and decide the outcome of the case…

When applied to the VA, the FTCA provides relief for any injury or loss of property or death caused by the negligent or wrongful act or omission of any VA employee while acting within the scope of their employment including but not limited to malpractice, neglect, physical or verbal patient abuse, initimidation, exploitation, wrongful discharge from a VA Hospital, Domiciliary or Nuring Home, or wrongful death while a Veteran is hospitalized or receiving treatment or examiniation provided by the VA, or while in a VA vocational reahabilitation or compensated work therapy activity or program. 

The statute of limitations for bringing a claim under the FTCA is two years from the time a claimant learns of the injury’s existence and cause.  However, before a filing a complaint in Federal District Court, the FTCA requires that all claimants must first file an Administrative Tort Claim against the VA by filing a Standard Form 95 at the VA facility where the injury or death occurred.  Once claimants state an amount in damages on their filed standard Form 95 they cannot later ask for a larger amount should it become necessary to file a lawsuit in Federal District Court, unless the increased amount is based on newly discovered evidence. 

After the claim is filed the VA has six months to dispose of the claim (approve or deny the claim).  If the VA does not dispose of the claim within six months, their failure to act within this time period with or without written notification also constitutes a denial.  Therefore, if an Administrative Tort Claim against the VA is denied, claimants have six months to file suit in Federal District Court.  After six months, the claim is forever barred.

Although there are no provisions for punitive damages in the FTCA, according to Federal District Court statisitics in which Plaintiffs won, the median damage for medical malpractice was $463,000.  In 29% of  those same cases, damages awarded were over $1million, and in 9% awards exceeded $10 million.

If you believe that you have a valid claim against the VA, you should seek the advice of an experienced Attorney, immediately.  The FTCA provides a limitation on Attorney fees for claimants of 20% in settlement and 25% once the case is in litigation.

You may read more informative articles by visiting Terry Richard’s website at: http://vfvs.com/VeteransCorner.html