You would think that the medical care provided to our nation’s veterans and service members would be of the utmost quality – but in many cases, this couldn’t be further from the truth. Unfortunately, the US Department of Veterans Affairs is rife with scandal, they are overworked, understaffed, and unable to provide proper, quality care. In these cases, some people may think that filing a medical malpractice lawsuit against the federal government is not possible – but this is simply not true. This article will answer the question of whether or not the VA can be sued for medical malpractice and what you can do if you are ever a victim.
Can A Veteran Sue for Medical Malpractice At The VA?
Yes. If you or a loved one has suffered from medical malpractice at the hands of the VA, you and your attorney can file a claim under the Federal Tort Claims Act (FTCA) to receive compensation for any pain, suffering, and economic loss.
While it is possible to sue, that does not mean that the process is easy or concluded promptly. Oftentimes, cases involving the VA are complicated and take time to conclude – so if you think you have a claim, contact an attorney to help you get started. Now, let’s explore the definition of medical malpractice and what you need to know to file your lawsuit.
What Is Medical Malpractice?
Before we can understand what to expect from filing a lawsuit against the VA for medical malpractice, we need to understand what medical malpractice is. Medical malpractice occurs when a hospital or healthcare professional, through a negligent act or omission, causes injury or illness to a patient. This injury can be the result of errors in diagnosis, treatments, or health management.
Under the law, a medical malpractice claim must meet the following characteristics:
- Violation of the Standard of Care: there are medical standards that are recognized by the profession as acceptable medical treatments by prudent healthcare professionals under similar circumstances, known as the standard of care. Medical malpractice must prove that the standard of care has not been met so that negligence can be established.
- The injury was caused by the Negligence: the standard of care has been violated, but it must also be proved that the injury sustained by the patient would not have occurred in the absence of the negligence and that the negligence itself caused the injury.
- The Injury Resulted in Significant Damages: for a medical malpractice case to be viable, the patient must prove that significant damages have resulted from the injury received because of medical negligence such as disability, loss of income, unusual pain, and significant medical bills, suffering, etc.
Once the previous conditions have been met, medical malpractice cases can include failure to diagnose, poor aftercare, misdiagnosis, unnecessary surgery, premature discharge, surgical errors, improper medication, and many others.
What Is the VA?
The US Department of Veterans Affairs was established to provide veterans and service members with certain benefits and programs, from education opportunities to rehabilitation services, compensation payments for disabilities, healthcare, and much more as a way of thanking them and honoring them for their time serving in the different branches of the military.
Disability Compensation is one of the programs available to veterans and their family members; it is a monthly tax-free payment to veterans who got sick or injured while serving in the military. Individuals may qualify for this program with physical conditions and mental conditions that developed before, during, or after their service. Veterans Affairs hospitals are located throughout the US and are places where veterans can receive care.
Veterans who receive care at VA hospitals may be subjected to substandard treatment for a variety of reasons. While the VA was established with positive intentions, it has lacked in the implementation of certain programs. This article will explore the unfortunate side of the VA, but you should note that not all hospitals and programs are bad. If you go to the VA for help, be sure to advocate for your needs and rights and you will know that the care you are receiving is quality.
Filing Your Medical Malpractice Lawsuit Against the VA
To start receiving compensation under the Disability Compensation program with the VA, you must file a claim. This claim is easy to find online, however, you must ensure that you are eligible and you must provide evidence and supporting documents with your claim. You can expect that your service record and discharge will be reviewed during the claim process.
Filing your claim can take time. You will have 365 days to complete the claim and submit your evidence and you can expect, on average, for the VA to take about 162 days to decide on your claim.
When filing, you should note that the statute of limitations on filing a VA medical malpractice claim is 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 2 years after the malpractice was committed. If the claim is denied by the VA at the administrative level, you will only have 6 months to file a suit in federal court.
Many requirements must be met for your claim to be filed and accepted. This is why hiring experienced medical malpractice, and especially a VA medical malpractice attorney is so important.
Preparing to File Your VA Malpractice Lawsuit
We just covered how you are legally able to file a malpractice lawsuit against the federal government, but now you need to know how to prepare. When you make your claim, there are several documents and proof that you will need to submit, including the amount you are requesting. This is where a good medical malpractice lawyer comes in. The amount must be detailed and thorough as the federal courts cannot award you any more money than what is listed in your claim.
The kind of proof that should be submitted with your claim includes:
- Information on future expected medical expenses
- Proof of anticipated lost future income
- A statement from your doctor
- Relevant medical records
- A statement from your employer about missed work and/or your ability/inability to complete your work
Most times your attorney will also include a statement from an expert describing the malpractice and damages in detail. Once all of this information has been submitted, the VA may request an in-person interview. They will have 6 months to issue a response to your claim: accept, offer to settle, or deny.
If the VA denies your claim or fails to respond within 6 months, you will be allowed to file a lawsuit in federal court. In this case, a judge will hear and decide your case. What you need to know when preparing to file your claim is to gather any necessary documents that back up and support your reason for filing.
Things to Know About A VA Medical Malpractice Lawsuit
Medical malpractice lawsuits are some of the most expensive cases to litigate and they are often the most time-consuming. Testimonies are required from several different individuals, experts, witnesses, etc. all requiring several hours of deposition testimony.
Beyond the numerous individuals that are involved in medical malpractice cases, you and your attorney still have to prove that your injury/illness resulted in significant damages because of negligence, due to a violation of the standard of care provided by a healthcare professional or institution.
In many medical malpractice cases, a settlement will be reached outside of court. It will be up to you and your lawyer whether or not you choose to accept the settlement payment, or proceed to trial. Always remember that your lawyer is on your side, but they also have significant experience in the field – so always consider their advice.
How Much Will It Cost To Hire an Attorney for My VA Medical Malpractice Case?
Most medical malpractice lawyers work on a “contingency basis” which means they will only get paid if they win. VA malpractice attorneys are a bit different in that they are limited as to how much they can charge you about your case. The fee for claims that settle at the administrative level is 20% and 25% for cases that go to court.
While it may seem like a lot of money to pay a lawyer, it is very important in VA medical malpractice cases. The VA has many laws, regulations, and limits and there are attorneys out there who specialize specifically in VA law. Pursuing a VA malpractice case is not as easy as simply filing a claim, hiring a lawyer can ensure that the whole process moves smoothly.
Attorney fees will vary by state and depending on the complexity of your case. Don’t be afraid to ask for help in this situation. You deserve compensation and other benefits for the lack of care you received, retaining expert counsel will ensure that you get the justice you deserve.
