Recovery from VA Malpractice - Sue the Government??

Recovering from a VA misdiagnosis, failure to treat or malpractice is quite complicated. The federal government is sovereign, meaning usually immune from the threat of lawsuits. In the interest of justice, the government allows damages to citizens to be evaluated under the Federal Tort Claims Act (FTCA).

FTCA allows a citizen to claim compensation from the US government when damage is caused by the negligence of an employee or agency (such as VA hospital malpractice) of the US government, including the Veterans Administration. VA medical malpractice law falls within negligence law, which is applicable to all lawsuits by attorneys against medical professionals, from VA hospitals to doctors and dentists to podiatrists and chiropractors. 

Increasingly, more medical negligence claims have been directed toward VA medical malpractice claims. According to the VA itself, the "environment of care" needs to be improved at most of its facilities.

Recovering damages under the FTCA is complicated and often can require help from experts experienced in the requirements for filing medical negligence lawsuits. For instance, before you sue, an administrative claim (an §1151, filed on Standard Form 95) has to be made against the VA for the full amount of damages you have suffered, and that is difficult and risky to determine. Once you have filed your administrative claim, you won't be able to ask for more damages—ever again--unless you have evidence that proves additional damages are warranted and you didn't have knowledge of them prior to filing your claim. One shot, and you'd better be on-target!

Either a veterans service representative from one of the larger veterans organizations (DAV, VFW, American Legion) or a VA-experienced attorney can help determine how much in damages you are entitled to receive and will make sure you don't "short change" yourself during this, the VA's investigation stage. The VA's regional lawyers have the authority to settle claims with awards up to $100,000, and the VA's General Counsel can make awards up to $200,000 when appropriate. The VA often has about 1000 malpractice lawsuits a year and annually loses about $125,000,000 in awards. About twice as many administrative awards are made than lawsuit awards, and only about a quarter of all claims (administrative as well as lawsuits) are awarded any damages. The VA often has as many as 4,000 administrative claims presented with awards per year totaling around $75,000,000 with about one in four claims succeeding with some amount of an award.

After your administrative claim is filed with the FTCA, the VA is entitled to six months for investigation and review of your claim. The VA can then do the following:

• Accept the claim and pay it out in full
• Settle the claim for less
• Reject the claim outright.

If your claim is rejected, your next step is to file a lawsuit in federal court. If the VA does nothing within six months, this means that your claim has been rejected. You can sue in federal court under the FTCA, which allows you to file a lawsuit within 2 years of discovering your injury and what caused it. But keep in mind that this timeframe includes the 6-month time period needed to file and complete your administrative claim. It is imperative that you meet these legal deadlines; if not you may lose your claim forever...thus the suggestion to be guided by experts in this field and not fly solo on your first flight!

My advice? Talk it over with your primary care provider and the specialist involved. Mistakes happen and if they don't cost you life or limb, often all we want to hear is an explanation and an apology, and an idea that such things will be prevented in the future. One of the monster problems within the VA, as I've found, is that you can't simply call the doc and discuss the problem...it seems when you ask to talk about the concern, you're referred to Patient Affairs. There, a general explanation might be offered but usually you're encouraged to write to the medical center's chief of staff and detail your issues. Once that letter arrives the VA generally refers the issue to an expert outside that particular facility for examination and response. Wow...what a procedure and what a public discussion of something you only wanted to discuss with your doc to complain and hear his/her response and perhaps even explanation as to why you might be mistaken! Actually...that would be good news, of course.

Often the VA at this point will suggest a settlement if it seems to be clearly malpractice, misdiagnosis or failure to treat. Experts advise that the amount of this initial offer can be six to eight times less than their offer against a lawyer-prepared administrative claim, but sometimes all we seek is a modest $1.00 and apology. Your call, but there is no reason to sit on your backside if you believe harm has been done you at the VA...they offer a pathway to recovery via the FTCA.