Medical Malpractice by the VA
Many current or former service members and their families receive medical care at healthcare centers and hospitals operated by the VA. Sometimes, actions by the VA doctor or healthcare staff may cause harm to the patient.
If this happens to a civilian in a doctor’s office or hospital, the family may choose to file a medical malpractice claim. The typical claim may ask for money to pay for extended medical care or special needs of the patient as a result of the wrong-doing. It may also include compensation to the family who has been harmed. While laws vary from State to State, families may have up to 6 years to file such a claim.
When VA Healthcare Providers Cause Harm
You cannot file a regular medical malpractice claim if a VA healthcare provider is involved. Instead, you have two options:
- Filing a claim under the Federal Tort Claims Act;
- Filing an "1151 Claim" with the VA;
A claim under the Federal Tort Claims Act claim must be filed within 2 years of the time that you discovered the injury and what caused it. The "1151 Claim" is an administrative claim that can be filed at any time with the VA.
You can file an 1151 Claim AND a claim under the Federal Tort Claims Act, but your VA benefits will be reduced by a Federal Tort Claims settlement.
If you are concerned that the healthcare provided at a VA facility caused harm to yourself or a family member, we encourage you to talk with an attorney experienced in medical malpractice and Federal Tort Claims Act cases right away. The attorney should be able to give you specific information about the pros and cons of making a claim under these two systems. Many attorneys who do this work will provide an initial meeting ("consultation") for free.
Under the Federal Tort Claims Act
Claims must be filed within two years of when the injury/harm was discovered and you learned what caused it.
The problem may be immediately obvious, but that isn’t always true. Many of these cases are decided on the basis of when the family should have know about the injury and what caused it.
If the VA healthcare center believes there is a problem, they may give you a SF Form 95 to complete. Giving you this form can be used as proof that you were told of the injury and what caused it. If you wait more than 2 years to file a claim after this happens, your claim will not be accepted by the Courts because of the “statute of limitations” in the Federal Tort Claims Act. It is very important to seek legal help as soon as a VA employee gives you the SF 95.
Often, you or your family will be the ones who decide that bad care was provided. You also have to begin the process within 2 years of discovering that fact, and you must file the SF 95 to begin the process with the VA. In the SF 95, you must describe the harm to your family and ask for a specific dollar amount related to "personal injury" and/or "wrongful death." To protect your family's needs, you should consult with an attorney in deciding what to request -- you can't change the amount on the SF 95 once it has been filed.
Once the SF 95 has been filed, the VA has six months to review and investigate the claim. It may:
- accept the claim and pay it out in full;
- settle the claim for less;
- reject the claim outright;
- do nothing
If the VA rejects your claim or does nothing within 6 months of when it is filed, you may then file a lawsuit in federal Court.
We strongly encourage you to talk with an attorney experienced in both medical malpractice and Federal Tort Claims Act cases before you file the Standard Form 95 in order to be sure that you are protecting your family’s interests.
Under 38 U.S.C. 1151, the veteran or his family are entitled to VA disability compensation benefits if the veteran’s disability or death resulted from:
- Hospital care, medical or surgical treatment, or examination furnished by the VA;
- Pursuit of a course of vocational rehabilitation under any VA-administered law, or
- Participation in a compensated work therapy (CWT) program.
The only exception to this general rule is if the disability or death resulted from the veteran’s own willful misconduct.
There is no statutory deadline to file an 1151 claim. It can be filed at any time. The VA also does not have any special form which must be used in filing an 1151 claim. The claim must be in writing and must clearly indicate that 1151 benefits are being sought.
The dollar amount of benefits will be the same as if the disability or death resulted from a service-connected event. The current VA benefits chart is available here.
As with other VA correspondence, we strongly encourage you to send the documents via certified mail, return receipt requested, and keep copies of everything you send.
If the VA accepts your claim, compensation is payable just as if the disability or death was service-connected. If you file the claim for compensation within one year of the date of disability or death, benefits will be retroactive to the date of disability or death. Otherwise, benefits will begin on the date your 1151 Claim was received by the VA.
The following VA benefits are NOT available for 1151 claims (even though they are provided for service-connected compensation):
- Service Disabled Veteran (RH) Insurance;
- Waiver of the loan guaranty funding fee;
- 38 U.S.C. Chapter 31 education benefits;
- 38 U.S.C. Chapter 35 education benefits
- the 10-point Civil Service Preference;
- the special allowance under 38 U.S.C. 1312(a);
- the special allowance under Public Law (PL) 87-377, Section 156, Restored Entitlement Program for Survivors (REPS);
- the Civilian Health and Medical Program of VA (CHAMPVA);
- SC burial allowance, and;
- loan guaranty benefits for a surviving spouse.