Can You Sue the VA? Know Your Rights

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This article has been written and reviewed for legal accuracy and clarity by Tort Defenders’ writers and staff and is as accurate as possible. This content should not be taken as legal advice from an attorney.

The Department of Veterans Affairs (VA) offers healthcare to U.S. military veterans and their dependents. The VA offers a range of medical services similar to any other healthcare provider. 

You might wonder if you can also sue the VA for medical malpractice. VA patients have many of the same protections as patients at private medical facilities, even though the VA is a government agency. If staff are negligent or don’t reach a reasonable standard of care, it may be possible to file a medical malpractice suit. 

Veterans and family members need to understand the factors of a medical malpractice suit, and they need to be aware of the specific steps for suing the VA. There are differences between such cases and standard civil suits. 

When Can You Sue the VA for Malpractice? 

You might have questions about your ability to sue the VA due to its status as a department of the federal government. The Federal Tort Claims Act (FTCA) lays out a process for people to sue the federal government. 

The FTCA outlines the process for suing the government in specific cases, such as wrongful death, personal injury, or negligence that leads to physical harm or property damage. The law covers negligence or malpractice committed by federal employees, including VA staff, during their official duties.

While you can go through the medical malpractice suit process with the help of an experienced attorney, you need to understand the details of the FTCA. While it offers a framework for suing the government if you were injured by one of its employees, there are some limitations to consider. 

For instance, you cannot sue the VA for damages caused by a contractor who was not directly employed by the department. 

Finally, VA employees may have to consider the Feres doctrine. It prohibits veterans from suing for injuries sustained while on active duty. Suits have to be limited to any malpractice or negligence that occurred in the VA. 

How Do You Start Suing the VA? 

If you have a valid lawsuit under the FTCA, you must follow specific steps. Some of these may be slightly different from the phases of a lawsuit against a private medical provider. Here is what you have to do to start a lawsuit. 

  • Build your case: Speak with a lawyer and collect evidence about your case. The details, including how much compensation you are seeking, are important when filing your claim. 
  • File a claim with the VA: You need to lodge the claim with the VA using Standard Form 95. The form needs to go to the VA’s regional legal counsel, who will respond to your claim. 
  • Go through the waiting period: After you submit your claim, the VA has six months to investigate and respond. 
  • Receive the VA response: The VA can accept your claim or offer a different settlement. They could also deny the claim or fail to respond, which in a legal sense is the same as a denial.

After this process, there are still a few options left if you don’t get the result you want. 

Can You Still Sue the VA if Your Claim Is Denied?

Under the FTCA you can proceed with a lawsuit in two circumstances: if the VA does not respond within six months or if they deny your claim. You have six months to file the suit from the time you receive the denial or the end of the initial waiting period.

A lawsuit is not the only option. You have the right to file for reconsideration. You make a reconsideration request in writing within six months of the denial. 

If you decide to go through with a lawsuit within the six-month window, you will file it in a federal court. From this point, you and your attorney will follow the steps for a civil lawsuit involving medical malpractice or negligence. 

Can You Sue the VA Hospital? 

You can sue a VA hospital or clinic provided your case does not involve one of the exclusions outlined in the FTCA. Here are some additional details to consider when filing this case:

  • Cases can only focus on employees who were acting within the scope of their professional role in the VA. The department isn’t liable for actions falling outside of normal treatment. 
  • This is still a civil lawsuit. You can seek the same type and amount of damages you would get from suing a non-government healthcare provider. 
  • Unlike some civil suits, an FTCA case does not allow for punitive damages. 

Finally, though this is a federal case, state rules may come into play. Often, the VA will use state regulations in the state where the injury occurred to help determine the amount of a settlement.  

Examples of Notable FTCA Cases  

There are several examples of cases filed against the government using the FTCA. These four instances provide insights into how the act functions and its limitations. They can also help you understand the types of cases plaintiffs pursue using the FTCA.

Sutherland Springs Mass Shooting  

This case involved the U.S. Air Force and claims of negligence. The shooting, which killed 26 people and injured 22, was carried out by an Air Force veteran at First Baptist Church of Sutherland Springs, Texas. 

The case proved that the Air Force was negligent because it failed to transmit background check information that would have prevented the shooter from purchasing the guns he used in the attack. 

The case settled for $144.5 million, with the victims and surviving family members receiving portions of the payout. 

Camp Lejeune Water Contamination 

This case surrounded water contamination that impacted soldiers and families stationed at Camp Lejeune in North Carolina. The contamination, from underground fuel tanks and an off-base dry-cleaning business, caused a range of health problems. Victims suffered from cancers, birth defects, kidney issues, and Parkinson’s. 

For several decades, victims struggled to prove their diseases were linked to exposure to contaminated water. Camp Lejeune claims became easier in 2012, when the Camp Lejeune Families Act required medical care for people who were exposed to the water for more than 30 days. 

The Camp Lejeune Justice Act allowed exposed veterans and families to file new claims using the same six-month process outlined in the FTCA. Claimants can take denied claims to court after the six-month review period. 

Manchester VA Lawsuit  

A veteran in Manchester, New Hampshire, successfully used the FTCA to sue the VA for malpractice after they failed to provide the minimum standard of care. 

The victim was paralyzed by a stroke. He remained alert but was not given recovery care by the VA staff. Instead, they planned end-of-life care for him even though the stroke was not fatal. 

A federal court agreed with the malpractice claim, awarding the victim $21 million. 

Fort Hood Birth Injury Lawsuit 

A 2008 case in Fort Hood, Texas involved brain damage during childbirth. VA doctors used the hormone oxytocin to assist with childbirth and limit bleeding after birth. They continued using the medication even after potential complications developed and care standards dictated the need for a Cesarean-section birth. 

The child was born with severe brain damage, and the resulting lawsuit led to $6.5 million in damages for the family. 

Finding a Lawyer To Sue the VA 

While you can sue the VA, you need a lawyer who is experienced with such cases. A skilled medical malpractice attorney can help you build a case that meets the criteria for medical malpractice. Also, they will be able to offer you a range of options based on the merits of your case.

With the right lawyer and a solid case for medical malpractice, you can use the FTCA to sue the VA and pursue just compensation for damages due to medical staff negligence or related issues. 

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