VA Medical Malpractice
38 U.S.C. §1151 and the FTCA
There are two potential types of relief when a veteran suffers injury or death as a result of VA health care:
1. Apply for VA disability compensation under 38 USC §1151
2. Pursue medical malpractice claim against VA under the FTCA
38 U.S.C. §1151 requires that the disability or death must be caused by one of the following:
· VA hospital care
· Medical or surgical treatment or examination
An §1151 claim is treated like any other claim for VA benefits—there is no deadline or statute of limitations for filing a section §1151 claim. An §1151 claim requires that there must be some fault assessed on the part of the VA. This specific fault requirement makes an §1151 claim much more difficult to win as the claimant must obtain medical opinion on the question of fault in order to succeed. New regulations went into effect in 2004, and under those regulations §1151 claims must meet certain causation requirements—that is show that VA care actually caused additional disability or death and establish that the VA failed to exercise its degree of care or provided care without informed consent. These standards are all in line with the regular civil medical malpractice standards which typically require a showing of proximate cause and consider how a reasonable health care provider would have acted under the circumstances.
The big difference between a civil medical malpractice claim and an §1151 claim is that there is a lower standard of proof applicable to VA claims. The standard of proof in most civil cases including medical malpractice is the preponderance of evidence standard. For VA claims, the standard is a bit lower—the benefit of the doubt standard. To prevail with the VA claim, the plaintiff need only show that the positive and negative evidence is in approximate balance.
The FTCA requires that a claimant file an administrative FTCA claim with the VA and receive an explicit or constructive denial of that claim prior to presenting the FTCA claim in federal district court. Thus, the veteran/survivor must file an administrative FTCA claim (SF 95) with the VARO and receive an explicit denial (w/in 6 months of filing) or constructive denial (VA’s failure to decide the administrative claim w/in 6 months can be regarded as a constructive denial) of the claim prior to presenting a FTCA in federal district court. The SF 95 must be filed with the VA Regional Counsel at the VARO (that has jurisdiction over the area in which the alleged malpractice took place) w/in 2 years of incident and after denial of the administrative claim the vet/survivor has only 6 months to file in federal district court. Failure to meet either deadline may bar relief. A FTCA claim arises at the time of injury, but if medical malpractice is involved the claim could arise at a later date. An administrative FTCA claim and §1151 claim are generally filed at the same time. (Note that the filing of an §1151 claim does NOT constitute the filing of an administrative claim under the FTCA.) The SF 95 needs to contain the medical expenses and damages sum certain and allegation of injury and negligence. The sum certain may be amended based on new and material evidence. FTCA claims can take years to litigate and VA regulations require that any § 1151 benefits be reduced by the total amount included in the FTCA judgment, settlement or compromise. FTCA awards are not subject to the VA ratings system (as §1151 claims are) and normal tort claim awards (allowing for pain and suffering) are paid in a lump sum. It is strongly recommended that you seek competent and experienced counsel to pursue these benefits.