Our firm was recently asked – “can veterans sue VA hospitals for medical malpractice?” It turns out that the answer to this question is a bit more complicated than most medical malpractice questions.  Any time there is government involvement, the legal process changes.  But what does that mean for veterans, who also have rights as patients to receive quality care?

Let’s take a look at VA hospitals, veterans rights, and what patients and families can do when medical malpractice occurs in these environments.  If you have specific questions related to VA hospital-related malpractice or negligence, contact Brown, Christie & Green to speak with our Houston medical malpractice attorneys.

Can Veterans Sue VA Hospitals for Medical Malpractice?

Are VA Hospitals a Haven for Malpractice?

In December 2017, Brown, Christie & Green published an article titled “Are VA Hospitals a Haven for Medical Malpractice?” This article examined a USA Today report suggesting that Veterans Affairs (VA) hospitals have knowingly hired doctors with questionable, or even dangerous, records.  From medical malpractice claims to doctors who have been disciplined, the report found that VA hospitals may, in fact, be putting patients at risk via their hiring practices.

Some of the most concerning elements highlighted in the USA Today report included:

  • A VA hospital hired an Oklahoma doctor sanctioned for sexual misconduct.
  • At a VA clinic in Louisiana, a psychologist working with patients was found to have a criminal record.
  • An Iowa VA hospital hired a doctor with a “troubled history” including more than two dozen malpractice claims. This doctor also received numerous complaints at the VA hospital over a span of time.
  • Some of the doctors hired by VA hospitals were hired illegally. Under Federal U.S.  laws, the Department of Veterans Affairs cannot hire providers whose medical license has been revoked.
  • VA hospitals have been found to hire doctors who may not be able to obtain their own malpractice insurance. Since VA hospitals do not require doctors to have their own policies, troubled records and malpractice claims can fly below the radar.

Reviewing this information highlights the fact that medical malpractice in VA hospitals is a very real concern.  Now, we must address the issue of what veterans and their families can do if they become the victims of malpractice.

Can Veterans Sue the VA for Medical Malpractice?

We have all heard from someone somewhere that you cannot sue the U.S.  government.  In some cases, that is true, but we won’t dive into the concepts of sovereign immunity.  Instead, let’s look at the Federal Tort Claims Act (FTCA).  The FTCA has certain provisions allowing veterans to sue and recover damages against a VA hospital if medical malpractice occurs.  There are a few stipulations to the rule, however, such as:

  • VA hospitals and the Veterans Administration can only be sued for damages resulting from the negligence of an agent or employee “acting within the scope of their employment”.
  • Lawsuits against VA hospitals only allow for damages the plaintiff would be entitled to if he or she was filing a lawsuit against a private institution.
  • VA hospitals cannot be sued for willful torts that are committed by government employees.
  • Lawsuits against VA hospitals cannot pursue punitive damages.
  • The provisions of the FTCA must be considered in accordance with applicable state laws.

It is important that state and federal laws both be considered carefully when filing any lawsuit.  To find out how these different laws could impact a medical malpractice claim, contact Brown, Christie & Green to schedule a free consultation.  Every case is different, and the best way to find answers to your questions is to speak directly with an attorney.

The Medical Malpractice Claim Process Under the FTCA

Because medical malpractice lawsuits against a VA hospital involve government entities and different sets of state and federal laws, the process is a bit different than ordinary lawsuits.  Some of the most important considerations before filing a lawsuit against a VA hospital include:

Filing

Instead of going to your local courthouse to file a lawsuit, claims against the VA or any federal agency require that first, you go to the agency and notify them of the complaint.  This allows the defendant an opportunity to settle the claim.  If the agency refuses, makes no response, or offers a settlement that is unacceptable, then a lawsuit can be filed.  To file a lawsuit, you must complete a Standard Form 95 and submit it to your local courthouse.

Timeline

Filing a lawsuit against the VA requires that you complete certain actions within a certain timeframe.  After an injury occurs, you must notify the agency in a timely manner.  Once this is completed, the agency has six months to respond and resolve the matter.  If you are denied or the six months has elapsed without resolution, then you have six months from that date to file a lawsuit.  Lawsuits must be filed within two years of the date of the injury, or the date the injury is discovered.

Damages

In medical malpractice claims against VA hospitals, if you can prove that you were harmed by negligence, you may be entitled to three different types of damages.  These damages include:

  • Economic Damages: Provides compensation for medical expenses, lost wages, anticipated medical costs, etc.
  • Non-Economic Damages: Provides compensation for emotional distress, pain and suffering, disfigurement, etc.
  • Future Damages: Provides compensation for damages that are anticipated. Examples include lost earning capacity, future medical care costs, etc.

Limitations

If you were injured at a VA hospital, there are a few limitations that you should be aware of.  The most important of these include:

  • Contractors: If the person who harmed you is not an employee, but a contractor, then the FTCA may not kick in automatically. In order for the FTCA to kick in, you must prove that the contractor was under close supervision of the VA facility.
  • Feres Doctrine: The Feres Doctrine is a legal concept restricting active duty military members, ROTC cadets, Guardsmen on order, Public Health Service officers, and Temporary Disability Retired List members from suing the VA. The Feres Doctrine may not apply to a spouse or dependent.
  • Location: If the injury occurred outside the U.S., then the FTCA does not apply. There may be other areas of law that allow you to pursue a claim, but you cannot sue under the FTCA.

The limitations that apply to your case may vary.  You should discuss any limitations and variables that could impact your case with your attorney prior to filing a lawsuit.

Our Houston Medical Malpractice Lawyer Can Help

As you can see, filing a lawsuit against a VA hospital is not an easy process.  There are multiple steps that must be taken, and within a certain timeframe.  There are also many variables that can impact your case.  That is why you need legal guidance from a medical malpractice lawyer who has managed this type of case before.

At Brown, Christie & Green, our Houston medical malpractice lawyers have the knowledge, skills, and resources you need to file a claim against a VA hospital and get favorable results.  To schedule a free consultation, fill out our online form, or call our office at 877-721-4451.

Sources

https://www.house.gov/doing-business-with-the-house/leases/federal-tort-claims-act

http://www.militaryauthority.com/benefits/veterans-benefits/can-you-sue-the-va-for-malpractice.html

https://www.nolo.com/legal-encyclopedia/when-veteran-is-injured-the-va-the-federal-torts-claims-act.html

Next Post

10 Texas Hospitals With Startling Infection Rates