Pennsylvania Veterans Affairs (VA) Medical Malpractice Claims – What You Need to Know

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There are numerous VA Healthcare Systems and Hospitals available to veterans in Pennsylvania including the VA Pittsburgh Healthcare System – made up of the Pittsburgh VA Medical Center-University Drive in Oakland and the H. John Heinz III Department of Veterans Affairs Medical Center in Aspinwall.

While the VA Health System provides a great service to our veterans, we have seen many instances where the medical care was substandard and led to avoidable injuries and death.

If you are injured by a VA doctor or other employee of the Department of Veterans Affairs, you have two legal remedies available to you. First, you can file a claim with the VA for disability compensation (commonly referred to as a Section 1151 claim), and/or second, you can seek money damages under the Federal Torts Claims Act (FTCA). Because our law firm handles FTC claims, the purpose of this article is to help you understand your rights under the FTCA.

Your Right to Sue

You can file a lawsuit under FTCA when any employee of the VA acts negligently and causes you an injury. In contrast, Section 1151 claims are limited to claims of injury resulting from a VA hospital, outpatient clinic, medical examination or surgery. Under the FTCA, a negligent act by any agent of the VA (for example, even a janitor leaving a wet floor on which you slip and get hurt) can be the basis of a  FTCA Claim. This means that the FTCA covers many more negligent acts than Section 1151 benefits do.

That said, it is generally less complicated to get benefits under a Section 1151 claim than under an FTCA claim. The paperwork is easier to file (especially if a veteran chooses to go it alone without a lawyer), and the evidence required in a Section 1151 disability compensation claim is typically less than that required in an FTCA claim.

FTCA Damages Available to Veterans

Unlike the VA rating system for service-connected disabilities, claims for money damages under the FTCA are not based on an evaluation of how your disability impacts your ability to earn a living. Instead, the money damages you could win are calculated based on your suffering and the economic loss that has resulted from your injury. And unlike disability compensation, which is paid monthly over several years, you receive payment in one lump sum if you win an FTCA lawsuit.

Another important distinction to keep in mind is that FTCA claims are more difficult to win and usually take a significantly longer amount of time to resolve compared to section 1151 claim.

How to File an FTCA Claim

First, we believe it is critical for you to have an attorney file an FTCA claim. The reason being that not only are VA medical malpractice claims difficult to win and vigorously defended by the government but they are very expensive.   For any medical malpractice lawsuit including a FTCA claim against the VA you will ultimately need to retain expert testimony from doctors, nurses or other related healthcare providers.  Experts charge thousands of dollars for their opinions.  Most veterans are not in a financial position to cover such payments.  A seasoned medical malpractice lawyer will front these cases costs for you to ensure you have the best chance of success on your claim.  Your medical malpractice lawyer will also know how to best file the claim, work through the initial procedural steps, file a lawsuit, respond to the government’s defenses and motions and negotiate the best resolution be it through settlement or trial verdict.

Administrative FTCA Claim

Before you can file a FTCA lawsuit, you must first exhaust your administrative remedies.  The first step in all VA FTCA medical malpractice claims is to file an administrative claim with the VA. This is done using Standard Form 95, Claim for Damage, Injury or Death. The statute of limitations for filing this claim is two years from the time of injury. Unlike most other VA claims, you do not file this application with your VA regional office. Instead, you file it with the VA Regional Counsel that is responsible for the region where your injury took place.  You can find information about your Office of General Counsel here.

When your initial claim is filled out, it is important to state your injury, the negligence that you believe caused the injury, and a definite sum of damages you would like to receive. An extremely important point to keep in mind is that the Government will never pay and a federal court cannot award you any more damages than you ask for in your administrative claim, so it is critical to get expert assistance in determining the amount of damages to claim.  If you file a Form 95 on your own, err on the side of making your claim larger.  If you file your claim and your injury or circumstances worsen, you will be stuck with the amount claimed for damages on your Form 95.

What Evidence You Will Need to Prove Your Claim

The types of evidence you may need to produce to support your claim includes:

  1. itemized bills for medical expenses
  2. information about future expected medical expenses
  3. a statement from your treating physician
  4. a VA medical exam report (mental and/or physical)
  5. a statement from your employer about your time away from work.
  6. opinion(s) from a medical expert(s)
  7. your medical records from both the VA and any non-VA healthcare providers

Federal Court FTCA Claim

If the VA denies your administrative VA claim, you have six months from the date of that denial to file your FTCA lawsuit.

If the VA did not decide your administrative claim after six months, it is called a “constructive denial,” meaning that your claim has been denied. You have six months from the date of a constructive denial to file an FTCA lawsuit. If you do not file your lawsuit within this time frame, you may lose your right to get money damages in the federal courts.  Again, if you filed your Form 95 on your own and the government denied your claim, it is critical that you get a lawyer to help you preserve your rights and timely and properly file your medical malpractice lawsuit.

May I file both a Section 1151 and FTCA claim?


What if I win both the Section 1151 and FTCA claims?

If you get an FTCA settlement and are awarded Section 1151 benefits (disability compensation), the VA will not pay you the disability compensation benefits until the total amount of the settlement is “offset.” What this means is that no VA benefits will be paid to you for your injury until the total amount of benefits withheld by the VA equals the total amount of your FTCA settlement. This is to prevent you from being compensated twice for the same injury or “double dipping.”

Is there a way to avoid this offset?

Yes.  In certain circumstances your attorney can structure your written FTCA settlement to avoid the offset, or at least reduce it. Also, any offset will not occur until after the FTCA settlement or court judgment of your lawsuit becomes final. If for example, the government appeals your FTCA claim, you are entitled to your full Section 1151 benefits. For this reason, it can be beneficial to file for Section 1151 disability compensation as early as possible after injury.

Additionally, if your injury occurred while you were receiving treatment for a service-connected disability, and the injury caused a worsening of the service-connected disability or a new disability, any compensation you receive under Section 1151 will not be offset by an FTCA settlement. You will be entitled to receive the full amount of increased disability compensation and FTCA damages without any reduction in your benefits.

What Will I have to Do to Assist with My FTCA Claim?

If you file a FTCA medical malpractice lawsuit against the government, you will need to be prepared to do the following:

  1. Review the complaint to make sure the facts are accurate
  2. Review and answer written questions from the government called interrogatories
  3. Provide various documents and records in response to requests from the government
  4. Prepare for an provide testimony under oath in a deposition
  5. Update your lawyer about the facts of your case and your injuries
  6. Attend various conferences in Court
  7. Attend a mediation designed to settle your case
  8. Attend and testify at a trial before a federal judge

How Much Will I Have to Pay for a Lawyer?

The short answer is that you will not have to pay a lawyer anything up front or out of pocket.  Under federal law, attorneys are limited in how much they may charge you for helping with your FTCA claim. For helping you win an administrative FTCA claim with the VA (before a lawsuit is filed), an attorney may charge you no more than 20% of the total money award you receive. If the matter requires the filing of an FTCA lawsuit, your lawyer may charge you no more than 25% of the damages you are ultimately awarded.  Retaining lawyer to represent you is essentially risk free because you only have to pay the fee if you win your case, and most attorneys who handle VA medical malpractice claims will forward any costs that need to be paid in order to file the lawsuit and prosecute it through resolution.

Without question your chances of success filing a Federal Tort Claims Act claim for medical malpractice against the VA will go way up if you hire an experienced medical malpractice lawyer.  To learn more and find out if you have a valid claim, please feel free to call or email the law firm of Lupetin & Unatin for a free consultation.

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