Can Veterans or their Families Sue the VA for Negligence, Malpractice, Wrongful Death???

by Terry Richards

The answer is YES…  But prior to 1946, Americans could not sue the United States for personal injury  or wrongful death caused by employees of the federal government because the  federal government had immunity from civil suits.  Victims of this  negligence generally had to rely on members of Congress to pass individual bills  of relief.  However, after World War Two, as a direct response to the claim that citizens were left with inadequate remedies against the federal government,  Congress passed the Federal Tort Claims Act (FTCA). 

When Veterans or others sue  the VA or any other agency of the Federal Government, they are actually suing  the United States of America.  And once in Federal District Court the  claimant is known as the Plaintiff, and the United States of America is known as  the Defendant. Additionally, there are no provisions for jury trials in the FTCA.   Therefore, only a Federal Judge will preside and decide the outcome of the case.

When applied to the VA, the  FTCA provides relief for any injury or loss of property or death caused by the  negligent or wrongful act or omission of any VA employee while acting within the  scope of their employment including but not limited to malpractice, neglect,  physical or verbal patient abuse, intimidation, exploitation, wrongful discharge  from a VA Hospital, Domiciliary or Nursing Home, or wrongful death while a  Veteran is hospitalized or receiving treatment or examination provided by the  VA, or while in a VA vocational rehabilitation or compensated work therapy  activity or program.        

The statute of limitations  for bringing a claim under the FTCA is two years from the time a claimant learns  of the injury’s existence and cause.  However, before filing a complaint  in Federal District Court, the FTCA requires that all claimants must first file an Administrative Tort Claim against the VA by filing a Standard Form 95 at the VA facility where the injury or death occurred or at the nearest VA Regional or District Counsel’s Office.  Once claimants state an  amount in damages on their filed standard Form 95 they cannot later ask for a  larger amount should it become necessary to file a lawsuit in Federal District  Court, unless the increased amount is based on newly discovered evidence. 

After the claim is filed the VA has six months to dispose of the claim (approve  or deny the claim).  If the VA does not dispose of the claim within six months, their failure to act within this time period with or without written notification also constitutes a denial and the Claimant may then proceed to Federal District Court. However, once a Claimant receives written notice of Denial or an Offer for Compensation which the Claimant does not accept, even more than 6-months that have passed, the Claimant has 6-months to file suit in Federal District Court.  After six months, the claim is forever barred.

However, once a Claimant receives written Notice of Denial or an Offer for Compensation from the VA which the Claimant does not accept, even if that written response takes longer than 6-months, the Claimant has 6-months from the date of that written response to file suit in Federal District Court.  After 6-months, the claim is forever barred.

Although there are no  provisions for punitive damages in the FTCA, according to Federal District Court statistics in which Plaintiffs won, the median damage for medical malpractice was $463,000.  In 29% of  those same cases, damages awarded were over $1-Million, and in 9% awards exceeded $10 million.

If you believe that you  have a valid claim against the VA, you should seek the advice of an experienced  Attorney, immediately.  The FTCA provides a limitation on Attorney fees for  claimants of 20% in settlement and 25% once the case is in litigation.