ALMOST IMPOSSIBLE - BUT NOT TOTALLY IMPOSSIBLE - FEDERAL DISTRICT COURT & VA CLAIMS
If a Veteran is injured at a VA Hospital due to Negligence or Malpractice of a VA Employee, the Veteran can not only file a Federal Tort Claim against the VA and the United States of America in Federal District Court, but also can file a Section 1151 Claim for Service-Connected Disability Compensation…Yet, Congress has enacted laws that makes it "almost impossible" for Veterans to be heard in Federal District Court on injuries or diseases that they actually incurred while in service on active-duty if they don’t like the VA’s Administrative Procedures for filing these claims… Why is that since it does not violate the "Feres Doctrine"??? Complete Article
CAN VETERANS OR THEIR FAMILIES SUE THE VA FOR MALPRACTICE OR WRONGFUL DEATH? Complete Article
Pursuant to Title 38, Section 1151 of the United States Code Service (U.S.C.S), there are several avenues of compensation available to Veterans who suffer a physical, psychological, or psychiatric personal injury as a result of VA, VA Health Care, VA vocational rehabilitation (pursuant to Chapter 31 of Title 38 U.S.C.S.), or participation in a VA compensated work therapy program (Pursuant to 38 U.S.C.S., Section 1718).
First, a Veteran, or his or her survivors or estate may pursue a medical malpractice claim against the under the Federal Tort Claim Act (FTCA). At the time of filing a FTCA lawsuit, or at any later time, a Veteran may apply for Disability Compensation under Section 1151.
If under Section 1151, the VA determines that the Veteran’s disability was caused by VA negligence, the VA will pay Compensation Benefits as if the disability were service connected.
Also, if under Section 1151, the VA determines that a death was caused by VA negligence, the VA will pay to the Veterans surviving spouse, children, or other family members, or estate, Dependency and Indemnity Compensation (DIC) benefits as if the death were service connected (Pursuant to 38 U.S.C.S., section 1310).
Although, VA compensation and DIC benefits are primarily aimed at providing cash benefits for disabilities and death related to military service, Section 1151 expands the program to cover rehabilitation, or participation in the VA compensated work therapy program.
Of course, if VA treatment for a service-connected condition makes an already service-connected disability worse or creates a new disability secondary to the service-connected condition, the Veteran may apply for an increase in service-connected disability benefits or claim secondary service connection without relying on Section 1151. There is no time limit for filing a Section 1151 Claim.
In most cases, Attorneys are not allowed to charge Veterans Legal Fees or represent Veterans in Section 1151 claims, unless a disinterested party pays the Attorney fees or until it becomes necessary for a Veteran to appeal his or her case before the Court of Appeals for Veterans Claims (CAVC). However, Attorneys may charge Veterans Legal Fee and represent them in both Administrative Federal Tort Claims, and in Federal Court.
For further details or assistance to apply for a Section 1151 Claim, contact any Veterans Service Organization Claims Representative located at your nearest VA Medical Facility or VA Regional Office. Please note that you do not have to be a Member of a Veterans Service Organization to receive assistance or for them to represent you with your VA Claim.
CAN VETERANS OR THEIR FAMILIES SUE THE VA FOR MALPRACTICE OR WRONGFUL DEATH? by Terry Richards Columnist
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 a 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. 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. Therefore, if an Administrative Tort Claim against the VA is denied, claimants have six months to file suit in Federal District Court. After six 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 $1million, 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.