Every year, thousands of vets suffer from the poor medical treatment they receive at VA hospitals or medical facilities. From medication and diagnosis errors to surgical errors and wrongful death, the consequences caused by the negligence of VA doctors or employees can have a drastic impact on a veteran’s family well beyond their trip to the outpatient center.
Some assume that filing a lawsuit against the federal government is impossible, but that is not true. If you or a loved one has suffered from the negligence of the Department of Veterans Affairs, you can file a claim under the Federal Torts Claims Act (FTCA) to receive compensation for pain and suffering and economic loss. It is important that you understand your rights so you can receive the compensation you deserve from the federal government.
Understanding VA Medical Malpractice Claims
The FTCA allows veterans and their families to file a medical malpractice claim against VA doctors and employees if their negligent care caused an injury. “Negligence” means the lack of ordinary care. “Medical malpractice” means negligence committed by a medical professional. Malpractice can be proven when an act is performed—or in some cases not performed—that would not be considered outside the general standards of the medical community. There are many different examples of medical errors that could cause significant injuries including surgical errors, medication errors, anesthesia mistakes, and misdiagnosis to name a few.
Loved ones of family members who died because of medical errors are entitled to pursue a “wrongful death” claim on behalf of the victim’s estate and beneficiaries. The potential recovery for “wrongful death” and other damages is governed by state law and will vary from state to state. In New York, loved ones can recover their economic losses while the estate can recover for conscious pain and suffering prior to death.
Filing a Claim and Lawsuit
The statute of limitations on filing a VA medical malpractice claim is two (2) years from the date of the malpractice. A properly completed, signed “Form 95, Claim for Damages, Injury, or Death” must be received by the appropriate government office within those two years after the malpractice is committed. If the Claim is denied by the VA at the administrative level, you only have six months to file a suit in federal court. Critically, missing these deadlines will bar your claim outright, even if your claim has merit. In Federal Court a judge, not a jury will decide your case.
The first step is to file an administrative claim with the VA Regional Counsel where the malpractice took place. It is critical that the initial claim be prepared correctly. You should consider consulting with an attorney to assist you with the initial claim paperwork to avoid prejudicing your legal rights.
The “Form 95” claim form provides the details claim, as well outline your injuries and the amount of compensation that you are seeking. The amount you are requesting must be detailed, as the judge cannot award any more than what you list in your administrative claim. Along with your requested sum, you must also provide evidence justifying the amount.
Other proof can also be submitted with your claim. This includes:
- any information on any future expected medical expenses;
- proof of anticipated lost future income;
- an employer’s statement about missed work;
- a statement from your doctor/treating physician; and
- relevant medical records.
In addition, an experienced FTCA lawyer will often include a written opinion from an independent expert describing the malpractice and damages as part of your initial claim.
After the claim is initially submitted, lawyers for the VA will often request an in-person interview with the claimant, or in the case of a wrongful death claim, the estate representative. It is important that the claimant have an attorney present for any interviews.
After the claim is fully submitted, the VA will have six months to issue a response to your administrative claim and will either, accept, offer to settle, or deny the claim. The VA’s written denial of your claim or failure to issue a response within six months—which is considered a “constructive denial”—will allow you to file a lawsuit in Federal Court. After the lawsuit is started the parties will be ordered to participate in a mandatory settlement conference. Claims often resolve at this stage. Sometimes cases need to be tried to conclusion by presenting live witness and expert testimony in court.
Legal Fees - How Do I Pay My Lawyer?
Malpractice lawyers typically work on a “contingency basis”, meaning they only get paid if they win. VA malpractice attorneys are limited by statute as to how much they can charge. The attorney’s fee for claims that settle at the administrative level is 20%, whereas the fee for cases that are sued in court is 25%. Your attorney also advances all expenses associated with the case only to be paid back at the end if the case is successful.
Conclusion
In sum, pursuing a medical malpractice claim against the VA is not as simple as just filing a claim. Cases of VA medical malpractice are difficult to win and can go on for years. A veteran or their family should hire an experienced VA malpractice lawyer to assist them early in the process. The key is to retain expert counsel to assist you through the complex process of pursuing your VA malpractice claim to ensure you get the justice you deserve.
If you or a loved one have suffered due to medical malpractice, get in touch with our New York medical malpractice attorneys at (518) 284-3183 to understand your legal options.