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Veteran Malpractice: Filing a VA Tort Claim

Published on Oct 22, 2021 by Thomas Law Offices.

Veteran Malpractice - Filing a VA Tort Claim
The idea of a medical malpractice case may be familiar to many of us, but what happens if someone is injured at a VA hospital? As employees of the federal government, those who work at VA hospitals are subject to a different set of rules than those who work at public or private civilian hospitals. But if you are the victim of a medical error or other act of negligence or wrongdoing at a VA hospital, you need to know that you have the legal means to protect yourself.

Although many veterans may be aware of the VA Title 38 U.S.C. 1151 claim for disability compensation, it is not uncommon to be unsure or hesitant about the process of filing a tort claim. Filing a tort claim is a method of seeking compensation after an injury caused by another. It covers a wider range of circumstances and negligent acts than 1151 benefits. For those injured through the negligence of a VA doctor or other VA employee, working with a lawyer to file a tort claim is often the best way to ensure that the financial burden you incurred is carried by the responsible party.

Let’s discuss further what is meant by a “VA tort claim.” In this article, we will provide an overview of how to file a tort claim, and examine what malpractice looks like when it occurs in a VA hospital setting. VA tort claims are highly complex and involved, so be sure to speak with an experienced attorney for further information.

What Is a VA Tort Claim?

When people refer to a “VA tort claim,” they are usually talking about the Federal Torts Claims Act (FTCA) and its application to VA employees. The FTCA allows for an individual to file certain types of lawsuits against the federal government. Under this statute, the U.S. government recognizes liability for the wrongful or negligent actions of a federal employee “acting within the scope of their official duties” (essentially, on the job). This would include any employee of a VA hospital at work. A VA tort claim is therefore a claim filed against the Department of Veteran Affairs when one of its employees is negligent and causes injury.

If you are a veteran receiving care in a VA hospital and are injured by a hospital employee, you may be able to file a VA tort claim. This situation can be compared to medical malpractice suits in a civilian hospital. FTCA guidelines states that the federal government can be liable to the same extent that an individual or party would be under the same circumstances. So if a doctor or other hospital staff member acts negligently and a patient is harmed, legal action can be taken against them, whether or not they are a federal employee.

However, the process for filing a VA tort claim is somewhat different from the more standard situations of filing medical malpractice suits against hospitals that are not VA-affiliated.

What Is the Process for Filing a VA Tort Claim?

According to the U.S. Office of Veterans Affairs, a tort claim may be filed by an injured person or their legal representative using Standard Form 95, Claim for Damage, Injury, or Death and providing all the required information. Let’s look at what information is required when filing a VA tort claim.

Standard Form 95

In cases of injury or property damage, the injured party will work with their attorney to fill out and file the Standard Form 95. In cases of wrongful death, the same form will be submitted by qualified surviving family members or estate representatives of the victim. A tort claim must be submitted to the proper agency, and must be received by that agency within two years of the injury.

Failure to file a claim within the two-year statute of limitations will likely result in the claim’s dismissal. Speak with your lawyer immediately following your injury to ensure that all the necessary paperwork is completed within the time limits.

Details of the Injury

Injury, rather than wrongful death or property damage, is the more common result of VA malpractice. Your claim must clearly provide details about the cause and nature of your injury. A thorough account of the negligence that caused the injury is necessary. It must be shown that a VA hospital employee acted wrongfully or negligently, that these actions resulted in your injury, and that your injuries caused a loss to you.

Your lawyer will work with you to gather the evidence necessary to support your claim. Your paperwork must also include your or your authorized agent or legal representative’s signature, as well as the sum of damages for which you are requesting compensation.

Sum of Damages

In your filed form, you will be asked to provide a monetary amount to compensate your losses. Your damages, or the sum of money you are entitled to after someone causes you harm, will be based on several factors. Factors such as the extent of your injury, hospitalization period, missed work time, any permanent disability, pain and suffering, and other elements should be taken into account.

You will not be awarded more compensation than the amount identified in the claim, so make sure you have an experienced lawyer. Your legal representative should work carefully to fully calculate all damages. Your attorney will also need to substantiate damages by providing relevant and comprehensive evidence.

How Are Damages Substantiated?

The instructions for Standard Form 95 require you, as the filing party, and your lawyer to provide a claim for money damages “in a sum certain” for your injuries. It is further stated that the amount claimed must be substantiated by appropriate evidence.

Your damages can be economic (medical bills, lost wages, and calculable losses), non-economic (pain and suffering, mental anguish, and other non-tangible losses), and future (ongoing costs of healthcare, loss of future wages, and disability prohibiting future endeavors). A skilled lawyer will deliver a detailed picture of how your life has been and will be altered by the injury.

One of the key pieces of evidence you will need to provide is a set of medical records and physician statements showing:

  • The nature and extent of the injury
  • The nature and extent of treatment and rehabilitation
  • The injury prognosis (prediction of the probable course of the injury)
  • The degree of permanent disability (when applicable)
  • The period of hospitalization or incapacitation

In support of your claim, additional information will be required to demonstrate the losses you sustained due to your injury. Depending on the circumstances, evidence could come in the form of:

  • Documentation of past and future medical expenses
  • Itemized bills for expenses (medical, hospital, or burial)
  • Employer statements about missed work time
  • Witness statements
  • Video footage of the incident that caused injury
  • Proof of property ownership and photographs of damage (in cases of lost or damaged property)

What Are Examples of VA Hospital Malpractice?

Medical errors are within the top three leading causes of death in the United States. Medical malpractice, whether it occurs at a civilian or VA hospital, can lead to—in the most common cases—chronic pain, infections, untreated or misdiagnosed illnesses, and even death.

In VA hospitals, untreated post-traumatic stress disorder (PTSD) is a major concern among military service members and veterans. When physicians ignore the signs of PTSD, damages to patients can be extremely injurious. Misdiagnosing or failing to diagnose mental health issues has been on ongoing problem in VA healthcare facilities.

Prescribing or administering the wrong medication is another problem seen too often in VA hospitals. When medications are handled negligently by prescribing physicians, pharmacists, and administering personnel, there is risk of dangerous interactions, addiction, or failure to treat the disease. In extreme cases, the misuse of medication can be deadly, such as a rare case in which a nursing assistant injected seven elderly veterans with fatal doses of insulin.

Other medical malpractice issues include failure to diagnose illness, failure to treat, not protecting against infection, and surgical errors. VA medical negligence can also be seen in situations of veteran abuse and neglect in VA nursing homes. Finally, failure to properly protect high-risk patients is a problematic hospital behavior that can be considered negligence.

If your case type is listed above, or if you suffered a more unique situation that resulted in harm, you may be eligible to file a tort claim against the VA hospital that caused your injury. To learn more, contact Thomas Law Offices with questions. We may be able to help you with your VA tort claim.

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Tad Thomas - Trial Lawyer

Tad Thomas

Managing Partner

Tad Thomas has dedicated his practice to representing plaintiffs in various types of civil litigation, including personal injury, business litigation, class actions, and multi-district litigation.

After graduating with his law degree in 2000 from Salmon P. Chase College of Law at Northern Kentucky University, Mr. Thomas immediately opened his own private practice and began representing injury victims.

In 2011, Thomas Law Offices was established in Louisville, Kentucky. Over the past decade, Mr. Thomas has expanded his firm and now has offices in three additional locations: Cincinnati, Ohio, Columbia, Missouri, and Chicago, Illinois. He is also a frequent lecturer on topics like trial skills and ethics and technology.

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