Veterans Medical Malpractice Questions

How does a medical malpractice case against the VA work?

The Department of Veterans Affairs is a department of the United States Government. As such, the Department generally can’t be sued due to the legal theory of “sovereign immunity.” In 1946 the Congress passed the Federal Tort Claims Act (FTCA), which allows suits against the government under limited circumstances. The FTCA is the most common way that individuals are able to bring a lawsuit against the VA.

One critical thing to remember about a lawsuit against the VA is that you cannot file suit until you have attempted to obtain an administrative remedy and waited for the government to evaluate your claim. What this means is that you can’t sue the VA until you fill out a form making a claim against the government. Then you have to wait six months to give the government a chance to investigate the claim. If, at the end of six months, the government doesn’t act on your claim, then you may file suit. If the government does act on your claim but you are not satisfied with the government’s offer, you may also have the ability to file suit.

All suits brought under the Federal Tort Claims Act must be brought in Federal Court. Even though the claims are brought in Federal Court, state law applies to your lawsuit. Usually this means that state law from the state where you were injured will apply to your claim.

Once properly filed in Federal Court, your lawsuit will go through a number of stages. The first stages involve what is known as “discovery.” This is a formal process where your lawyers and the lawyers for the government can ask various written questions of the opponent. In addition, your lawyers and the government lawyers will take depositions (cross examinations taken under oath in front of a court reporter) of all the medical experts each side has designated in the case. There are usually several depositions and several months of discovery before the case is brought to trial.

If your case is tried in court, it will be tried before a Federal Judge, not a jury. There are no jury trials available for claims under the FTCA.

What has to happen for me to file a claim for medical malpractice against the VA?

First, you need to obtain representation by a qualified law firm. Not all lawyers are familiar with the laws governing VA medical malpractice. You need a firm with experience and resources. Your law firm will consult with medical doctors who are specialists in the field of your injury. These specialists will provide opinions as to whether or not your injury was caused by the negligence of the government employees.

Second, your attorneys will need to file an administrative claim. This is a necessary prerequisite to bringing suit against the VA or any other federal entity under the FTCA.
Generally, six months must pass before you can then file suit in Federal Court.

Third, your attorneys will file suit against the VA in Federal Court if no resolution has yet been reached in your case. The case will then be litigated in front of a Federal Judge if there is no settlement beforehand.

The doctor who hurt me isn’t a government employee, can I still sue for my injury?

Yes, you can still sue for injuries. In most cases, however, you will not bring suit using the Federal Tort Claims Act. Instead, suit is brought against the doctor individually. His own liability insurance would then be your source of recovery.

If I was injured by medical malpractice while on active duty can I still sue?

Not under the Federal Tort Claims Act. You do have a potential source of recovery through another law called the Military Claims Act. The Military Claims Act is similar to the Federal Tort Claims Act, except that you cannot sue the government if your administrative claim is rejected. In other words, only the administrative claim is allowed under the Military Claims Act.

Will filing a claim effect my benefits?

This is a complicated area of the law. Generally, filing a claim for medical malpractice will not effect your military disability benefits. However, there are some specific things to watch out for. This is why you need capable lawyers to help you in your VA claim.

I am a member of the Armed Forces, but my spouse is not. Can my spouse or children sue the VA if they are injured by medical malpractice?

Yes. Generally, your spouse and children can sue the VA under the Federal Tort Claims Act if they the victims of medical malpractice committed by a government employee at a VA facility. In some cases your spouse or children may have a claim against the doctor individually if the doctor was not a government employee.

I was injured overseas at a U.S. base. Can I sue?

The general rule is that overseas claims must be made under the Military Claims Act. This act is similar to the FTCA but it does not allow lawsuits if you are dissatisfied with the government’s administrative decision.

How much money can I expect to get?

It is impossible to say how much money your case may be worth until it is evaluated by an experienced attorney. Even then, it is always difficult to estimate the value. The government may make you an offer of settlement after you submit your administrative claim. If they do not make such an offer, and suit is filed, then your attorneys will negotiate with the government to try to come to a settlement value that is as high as possible. If there is no settlement and your case goes to trial, a Federal Judge will listen to all the evidence presented by each side and then make a decision as to whether or not you have proved your case. If the Judge finds that your case has been proved, then the Judge will assess the amount of money you are owed.

What about attorneys’ fees? How much do I owe the lawyers I hire?

You never pay money unless we win your case. By Federal Law our attorneys’ fees are limited to 20% or 25% of the amount we get for you, depending on the circumstances. Expenses such as deposition fees and expert witness fees will also be deducted from the recovery, if any. The percentages charged by our firm in Federal Tort Claims Act cases are extremely reasonable considering that many law firms that handle medical malpractice against private doctors and hospitals will charge 40%-45% of the recovery as attorneys’ fees. If we spend a large amount of money on your case and then lose the case, you do not owe us anything. We take the risk of investing in your case and our goal is to get you the largest recovery possible.

In which states do you handle claims against the VA?

We have attorneys on staff licensed to practice law in Texas, New York, Pennsylvania and Arkansas. In addition, we partner with attorneys nationwide on individual cases that occur in states where we are not directly licensed by the State Supreme Court.

What is an M.D./J.D. and why should I have one working on my case?

An M.D./J.D. is a person who is both a doctor and a lawyer. Ryan Krebs, M.D., J.D. has an impressive record with our firm. He holds an M.D. Degree from Southwestern Medical School, and completed his residency in internal medicine at the University of Michigan. Ryan is a 1994 graduate of the University of Texas Law School. He has tried many cases to verdict and his entire legal career has been devoted to medical malpractice. Ryan has the experience and expertise to quickly evaluate your case and provide you with professional insight about your claim. Ryan is now in full-time law practice handling medical malpractice claims almost exclusively.

What are some common medical errors that result in malpractice suits?

Birth/Delivery Cases: These usually involve mistakes made in the delivery of babies. Maybe the doctor used forceps too forcefully or maybe the doctor jerked the baby’s arm out of socket causing permanent nerve damage; whatever the type of injury, there is no doubt that birth injury cases are among the most important and traumatic cases brought against the VA. Cerebral palsy, shoulder dystocia and other ailments can be caused by errors made during the birthing process. Parents should be aware that unlike the law in many states, the statute of limitations begins to run on a Tort Claims Act Case even though the child is still a minor! That is why it is essential that you contact lawyers who know the Tort Claims Act and who understand this complex area of the law.

Paralysis cases: These cases can involve surgical mistakes, drug mistakes, or other errors. If a person winds us paralyzed in whole or in part by the VA, the person should seek the advice of a qualified attorney immediately!

Misdiagnosis cases: Unfortunately, this is a frequent problem. The doctors involved may misdiagnose your condition as a minor ailment or may treat you for the wrong disease. Sometimes these cases can have serious and life-altering consequences leading to disability or even death.

Amputation cases: It is almost unbelievable, but all too often we have read about amputations where the wrong leg or arm, etc. In addition, other amputation cases may involve incorrect procedures or errors that result in unnecessary amputations.

General medical malpractice: These cases can come in almost any conceivable form. These cases may arise from giving the wrong drugs or from performing the incorrect procedure. Many cases also arise from neglect of a condition or failure to treat with a reasonable degree of care. Because this area of the law is so complex, it is absolutely essential that you consult with an attorney who is familiar with the laws governing medical malpractice against the VA.

What is the statute of limitation against the VA?

The statute of limitations that covers claims under the FTCA and the Military Claims Act is very complicated because there are various exceptions and excepts to the exceptions. You should not presume that your statute of limitations has run, but you also shouldn’t presume that it is safe to wait around and think about whether or not to file a claim. You should act immediately to ensure that all your rights are protected. One very important thing to remember is that the statute of limitations runs on a child’s case even though the child is a minor! This is very different from most states’ laws and is a frequent area of misunderstanding among lawyers who are not familiar with the FTCA and MCA. Once we have evaluated the specific facts of your case we will be able to make an educated assessment of whether or not your statute of limitations has run.

Can you help me with my disibility claim?

Cappolino Dodd and Krebs will work diligently to remedy medical malpractice claims. We however, do not handle VA disability claims.  The lengthy and time sensitive process is beyond the scope and mission of our firm as it pertains to obtaining justice for our clients.

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