Suing the Department of Veterans Affairs for medical malpractice is different from suing a private physician or hospital facility.
Instead, this is a highly complex area of the law that requires legal assistance. Therefore, if you are a veteran receiving healthcare services from your local VA clinic or hospital, and you suspect you are the victim of malpractice, speak with an attorney from Berkowitz and Hanna, LLC immediately.
Healthcare providers, per the American Bar Association, include:
Most actions for malpractice are filed against a doctor for lack of reasonable care while treating the patient.
However, the goal is not to punish. It is to bring awareness to that physician as well as the medical community. Also, the patient is allowed to recover costs for their health care and the injury they received.
Malpractice lawsuits are time-consuming and highly intricate.
Suing a VA doctor becomes tricky because the federal government is usually immune to lawsuits under the doctrine of sovereign immunity. This legal principle prevents lawsuits against the United States government (and associated agencies like the Department of Veterans Affairs) from lawsuits.
Under the Federal Tort Claims Act (FTCA), however, an injured veteran can file a lawsuit. There is a particular exception to the immunity the government receives. The exception allows veterans and their families to sue for malpractice if the suit complies with all requirements created in the FTCA.
Your claim can be filed under the Federal Torts Claims Act or Section 1151. However, there are two distinct differences between these:
Therefore, the FTCA is broader and covers more types of claims and government employees than Section 1151.
The FTCA has various requirements that you must meet to make a successful claim for malpractice against the VA. These requirements must be met before your case goes through the initial stages. There are further requirements once your lawsuit begins.
Therefore, it is imperative you speak with an attorney and ensure that you follow these recommendations.
It is imperative you hire an attorney for this process. While it seems relatively straightforward, the FTCA lawsuit has strict procedures, and a misstep might result in a denial.
First, you must file an administrative claim under the FTCA with the VA through your attorney. Using Form 95, your attorney makes a claim for your injury or the loss of a loved one.
The form is not required per the VA. However, your attorney must file a complaint that contains all required information from the Standard Form 95. You must sign your complaint and provide information so that the VA can investigate your allegations.
You have two years to file this claim from the date of your injury. However, you do not attach it to the local VA office. Instead, you must submit with the Office of General Counsel through the Chief Counsel in your area. That counsel is responsible for the hospital or healthcare provider in your region.
The claim must contain several elements, including:
Note, you will not receive higher damages in federal court than the amount sought in your administrative claim.
Also, the administrative claim requires more than your word regarding injuries. In that claim, you must provide evidence, including:
Sometimes, a claim is denied in the administrative phase. If this happens to your request, you have six months from your denial date to file an official FTCA lawsuit with the federal courts.
There is also a constructive denial, which is quite common from the VA. In a constructive denial, the VA denies by not responding or deciding on your claim six months after you file the administrative claim. In this case, they have essentially denied your request, and you can move toward the federal court lawsuit.
Your six months would begin from the date of your constructive denial, and then you have the right to file a federal lawsuit.
You are not required to wait for a ruling before filing your lawsuit. However, you must wait the initial six month period before you can file – to give the government adequate time for investigation and response. Once you complete the process known as “exhausting all legal remedies,” you can then proceed with an official lawsuit.
The FTCA also limits how much a vet will pay for an attorney helping him or her with their administrative or federal court FTCA claim. An attorney cannot charge more than 20 percent for his or her contingency fee from the VA in an administrative complaint. In a federal lawsuit, the FTCA does not allow a contingency fee of more than 25 percent.
Typically, you only pay the attorney if he or she wins your case. So, if they are unsuccessful with your case, you do not pay. Also, your malpractice attorney should pay up front for costs associated with your lawsuit, including copies, investigations, and filing fees.
When you can show that you were harmed due to a physician or healthcare provider’s negligence, you are entitled to three types of damages. These damages include:
Punitive damages cannot be requested through an FTCA claim. Instead, you are only allowed to seek economic damages, non-economic damages, and future costs. The amount you specify in your request is the amount you are likely to receive through the administrative process as well as the court case. Therefore, you do not have high jury awards or unexpected settlement outcomes. Also, the VA requires a strict calculation for all claims. While you can estimate future costs, including future lost wages, you must do so by use of an expert.
Unfortunately, punitive damages are not available to veterans injured by VA medical professionals. Regardless of how grossly negligent the care was, the VA does not have to pay punitive damages.
One more distinct difference between an FTCA claim and a regular personal injury claim is that there is no entitlement to a trial by jury. Instead, your damages come from federal district judges, and only senior-level judges at that. These jurists are more experienced; therefore, less likely to be moved by certain claims that would otherwise encourage a jury to award a high monetary value. The judge’s award, while conservative, will still cover the number of damages you deserve for your injuries.
If you are active duty military, youcannot sue the VA for medical malpractice. Instead, your issues apply to theFeres Doctrine, which requires you to follow a different procedure for filing a complaint and receiving benefits for your injury.
While the federal government starts the process with an administrative complaint, do not let the term “administrative” mislead you. The process of filing your complaint with the VA is highly involved. You must thoroughly understand the FTCA and all requirements for a claim. In some cases, you might not qualify for an FTCA claim. Instead, you must file for benefits under Section 1151.
After a serious injury in a VA hospital or by a VA provider, you may be entitled to compensation. To explore your options, speak with anattorneyfrom Berkowitz and Hanna, LLC.
Contact Berkowitz and Hanna, LLC today to schedule a no-obligation case evaluation. Call 866-479-7909 or contact us online to get started.