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Can You Sue the VA For Malpractice?


If you believe you have been the victim of medical malpractice in a Veterans Affairs hospital or clinic, you may have recourse in the courts. That said, suing the government over anything is a notoriously tricky process.

Dispelling a myth

From time to time, you may hear someone say ‘you can’t sue the government.’ Well, that’s not quite true, except for most members of the armed services, it is true that there is an overarching legal principle called ‘sovereign immunity’ that says that the government need not subject itself to the same rules that apply to the rest of us.

It goes back to English common law, from whence we inherited our own legal traditions and precedents - and perhaps even before that. The theory is that since it was the sovereign that created the courts to begin with, the sovereign, crown, king, lord or czar cannot be held subject to a court order.

For a long time, that was the case in the United States, as well. Sovereign immunity was the law of the land – until someone crashed a B-25 bomber into the Empire State Building in New York City.

And sovereign immunity is still the law of the land – except the United States has waived its immunity in certain limited ways, via a federal law called the Federal Tort Claims Act.

The FTCA provides a legal window for veterans who believe they may be victims of medical malpractice on the part of VA personnel to file suit and recover compensatory damages. The law forbids punitive damages, however, and also does not apply to willful torts committed by government employees. However, you may have recourse under other areas of law to sue these individuals, personally.

The FTCA basically carves out a limited exception to the doctrine of sovereign immunity. As it applies in the context of claims against the Veterans Administration, the law only allows veterans to sue to recover damages incurred due to negligence of an employee or agent acting “within the scope of their employment.” Furthermore, the law only allows for damages if the plaintiff would ordinarily be entitled to damages even if the negligence or omission was due to the actions of an employee of a private company, under the laws in effect where the incident happened.

This last condition, in turn, means that state laws must be taken into account when formulating a lawsuit against the VA, and not just federal laws.

What you must do

Under the FTCA, you can’t just go directly to the courts to file a lawsuit. You must first go to the VA or other federal agency that harmed you and notify them of your complaint. You must give the agency the opportunity to settle the claim. Only when the agency refuses, takes no action, or comes back with an unacceptable settlement offer can you file a suit for damages.

What kinds of damages are you entitled to?

Provided you can show you were harmed, and that it was due to the negligence, failure or omission of a federal employee or agent, you are entitled to three different kinds of damages, as a jury may direct:

  • Economic damages. These are awards designed to compensate you for quantifiable losses such as the lost wages, the costs of medical care, and the like.
  • Non-economic damages. These include damages for pain and suffering, emotional distress, disfigurement, and the like. These are all things that are difficult to translate into monetary terms, but juries have to try to find a way through it, nevertheless.
  • Future damages. These are damages you have not yet incurred, at the time of the verdict, but which are reasonably predictable and which you believe will occur, or continue to occur, in the future.
Limitations

If the act that harmed you was committed by a contractor, the Federal Tort Claims Act generally does not kick in, unless the contractor was being closely supervised at the time by the VA itself, in a relationship more common in employer-employee settings. You cannot go after the government for damages, unless the government was in close supervision of the day-to-day activities, say, of a physician in private practice contracted with the VA.

You may be able to sue the contractor, however. In the case of physicians, they will normally have medical malpractice insurance in place that will provide funds for a settlement or to satisfy a judgment, if appropriate.

Active duty members, Guardsmen on military orders, ROTC cadets, members of the Temporary Disability Retired List, and Public Health Service officers cannot sue the VA, however, under the Feres Doctrine. The Feres Doctrine does not normally apply to spouses and dependents, however.

Foreign claims excluded

If the tort occurred outside of the United States, you can’t sue under the FTCA. You may be able to find another area of law to pursue the claim, but the lawsuit will not work if you rely on the FTCA.

Timelines

You can’t dilly-dally on the claim forever: You must notify the agency in a timely manner – in the case of the VA by filing an administrative claim at the regional VA office. You must then give the agency six months to resolve it.

Once that six months has elapsed, or you have sooner gotten a denial from the agency, you then have six months to file a lawsuit under FTCA.

In addition, you must file the lawsuit within two years of the day the claim first accrues. Note that this might be a different date than the date on which the tort occurred; It could be the date you first became aware there was a problem resulting from a medical procedure that occurred – or failed to occur – well prior to that.

To file, you submit a Standard Form 95 to the court. The form requires you to specify the damages you are seeking. Since there is no provision for punitive damages under the FTCA, the amount you specify is the most you are going to receive, unless new facts come to light that were not foreseeable at the time of filing.

This is why it’s important to work with an experienced attorney: A good lawyer will be able to walk you through not just the economic damages, but also help you estimate what you may be able to get in non-economic damages, based on familiarity with other precedents. He or she should also be able to help you determine reasonable estimates for future damages as well, depending on your condition.

For a more thorough discussion of the issues surrounding the Federal Tort Claims Act, specifically as it applies to the VA, see this white paper published by the Tully Rinkey law firm, with offices in New York, Washington, D.C. and Arlington, Virginia.

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