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Can You Sue the VA for Medical Malpractice?

Written October 13, 2022

If you or your loved one is a veteran or a military member and experienced medical malpractice at the hands of the VA hospital, you might be wondering if you can sue the VA for medical malpractice. 

Medical malpractice can lead to injuries and even death, so you might be wondering how to file a lawsuit and see what kind of compensation you are entitled to. 

You might be thinking that filing a lawsuit against the VA is impossible because the VA is run by the federal government. Here are the facts you need to know. 


Can You Sue the VA for Medical Malpractice?

If you or a relative has suffered negligence from the VA, you are entitled to file a lawsuit just the same as if you suffered from medical malpractice at the hands of another hospital or doctor. 

The Federal Tort Claims Act (FTCA) allows people to file claims of negligence against the VA to receive compensation for economic losses and suffering. Here is some more information about the FTCA and what you need to know in regard to filing a lawsuit. 


Federal Tort Claims Act 

The FTCA allows all veterans and their family members to file medical malpractice claims against VA doctors and any VA employee if their negligence caused injuries. It will need to be proven showing that a certain action was formed or not formed and caused the injury. 

Under the FTCA, veterans and family members can file a medical malpractice claim if there were surgical errors, medication errors, and anesthesia mistakes. You can also file a claim for anything that caused a significant injury. 

Under the FTCA, veterans and their relatives can also file wrongful death claims if a loved one died as a result of medical malpractice. 

Victims are also entitled to receive benefits from Section 1151 for disability as well. These claims will be paid out in one lump sum instead of monthly payment like other disability claims. 


How to File a VA Medical Malpractice Claims 

If you have been a victim of medical malpractice by the VA, you might be wondering how to file a claim. The statute of limitations on filing a VA medical malpractice claim is two years, so make sure you contact a lawyer and start the filing process as soon as you are ready to move forward with the lawsuit. 

You will need to complete and sign a form called Form 95 Claim for Damages, Injury, or Death. You will also need to file an administrative claim with the VA regional counsel at the location where the malpractice took place. 

It’s recommended you consult with an attorney before filing this claim as it has to be filed correctly. If it’s not filed and filled out correctly, you might jeopardize your legal rights which can cause you to not be able to file a lawsuit. 

Form 95 basically gives an overview of the case. It will outline all the injuries you experienced as well as the amount of compensation you are seeking. Ask an attorney to help you list the compensation you are wanting as it has to be detailed ad thorough. The federal courts also cannot give you any more compensation than what you are asking for, so you need to make sure the amount is correct. 

You have to show evidence as to why you are seeking this amount. A medical malpractice lawyer will be able to outline the evidence for you and submit all the correct paperwork. 

Although the lawyer will be able to give you some evidence advice and ask to see all your files, here are some of the things you might want to gather and bring to the lawyer to review:

  • Information on the future expected medical expenses 
  • Statement from your employer about work you missed 
  • Proof of anticipated lost future income 
  • All paperwork and statements from the doctor who has been treating your illnesses 
  • All medical records that are relevant to the illness or injury 

Medical malpractice lawyers should also get an independent expert to describe the malpractice to the jury or the court. 

After your claim, you might be asked for an interview with the VA lawyers. You should inform your lawyers of this interview so that they can come with you and advise on what you should say. 

The VA will review your paperwork and interview and then decide whether to accept the claim or deny the claim. They might also choose to settle it. If your case is denied, you will have six months to file a claim in the federal court which a VA lawyer can help you with. 

A judge in the federal court will hear your case and will usually schedule a settlement conference. Most claims are settled at this state although some cases will require live witnesses and expert testimonies. 


When Should I Contact a VA Lawyer? 

You should contact a VA lawyer as soon as you think you have experienced medical malpractice. You should also contact them before you file any lawsuits. Having a lawyer on your side ensures that all the paperwork is filed correctly and that no items are missing. When your file and forms are complete, your case will be able to be settled and reach the federal court sooner. 

If you are not sure if you have experienced medical malpractice, you can also contact a lawyer and have them review your case. They will be able to check your medical records and see exactly what happened to determine if you experienced medical malpractice. 


Can I File Claims Myself? 

You always have the right to file claims yourself. However, it might not be the best idea because you don’t want to risk filing any of the papers wrongly. If you do decide to file it yourself, make sure it’s filed with the correct veteran court and within two years of the negligence happening. 

Filing a claim by yourself is the easy part though. It’s the next steps that might be difficult for you if you are not partnered with a lawyer. 

Appearing in the claims court and talking to a judge and jury by yourself can be intimidating. The interview you need to do with the VA lawyers can also be hard by yourself. Some VA lawyers might be also take advantage of the fact that you’re alone and do not have an attorney advising you. 


What Are You Entitled to as a Veteran Victim of Medical Malpractice? 

If you’re a veteran and have been a victim of medical malpractice, you might be wondering what you are entitled to as a victim. There are three types of damages you are entitled to that your lawyer should discuss with you:

  • Future damages: this can include future lost income if your illness causes you to not be able to work anymore or if you have to lessen your hours 
  • Non-economic damages: this can include emotional distress, quality of life issues, pain, suffering, and disfigurement 
  • Economic damages: this includes lost wages and medical bills 

Unlike other medical malpractice lawsuits, the VA does not allow for punitive damages so these will not be included. Since there is no room for punitive damages, you have to list how much compensation you want exactly. 

The amount you list is the maximum amount you can receive, not the minimum. It’s recommended you need to talk to a lawyer before writing down the compensation as you might not know the appropriate value to put. 


How Can Duffy and Duffy Law Help Me? 

If you are in New York and a veteran or a loved one is a veteran, you might be wondering how you can file a claim and the next steps you can take. Duffy and Duffy is a New York medical malpractice law firm that has over 20 years of experience helping patients and victims. 

Our main goal is to help veterans and their relatives seek justice. Malpractice from VA doctors can be painful and life-changing. You might not be able to work the way you did before or you might not be able to live the lifestyle you wanted to. 

Your family and children might also suffer emotionally and economically because of your illnesses or injuries. 

We are here to help you seek the compensation you deserve from the VA and the federal court. Our attorneys have experience working with the VA and plenty of experience also filing Form 95. 

We can take away the burden of filing the paperwork incorrectly or accidentally not including all the paperwork. We also have nurses on staff that can review the paperwork. Along with our on-staff nurses, we have plenty of experts that testify on your behalf in court. 


Ready to start your lawsuit? Contact our office today so we can meet with you to begin preparing your case. We offer free consultations with no fees or no expenses unless you win. 

Choose Duffy & Duffy

The injury attorneys at Duffy & Duffy have dedicated their practice to helping victims who have been hurt as a result of someone else’s carelessness. Our trial lawyers have years of experience litigating and resolving negligence claims, and we can use our knowledge and skill to pursue the compensation you deserve.

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  • 250+ malpractice cases settled
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