May 30, 2019

VA Hospitals and Medical Malpractice: What You Need to Know

The VA medical system has had its problems over the years, and most veterans know it isn’t easy to sue a VA hospital for medical malpractice. Hiring an experienced medical malpractice attorney is really the only way to navigate the complexities of the VA and the laws that surround it as an extension of the federal government.

You must first file a Standard Form 95 claim with the correct Veterans Affairs administrative office within two years of the date of negligence or malpractice. The VA must have six months to conduct a formal investigation, and at the end of that investigation that can either approve the claim or deny it. If the claim is denied and won’t be reconsidered, then your medical attorney can move to file a suit in federal court within six months.

What is medical malpractice?

Medical malpractice occurs as a result of willful negligence or simple incompetence. It can often be difficult to prove, which is why a medical malpractice attorney can help a victim gather all necessary information and health records to begin to build a strong case.

Medical malpractice is also called medical negligence or preventable errors. Over 90% of errors are not reported, making it difficult for patients to gather evidence for their case. Lawyers specializing in medical malpractice understand this hurdle and have many avenues they can pursue to find the truth about the circumstances of a victim’s case.

Preventable errors include:

  • failing to order tests, or act on the results
  • treatment delays
  • delays or errors in diagnosis, or failure to diagnose
  • incomplete or outmoded testing methods
  • failures or delays in follow-up
  • data entry errors leading to mistakes in care and testing
  • failures or delays in communication
  • birth injuries
  • mistakes made in surgery, testing, medications, or treatment
  • equipment failure

Preventable errors also include many kinds of infections, which are usually avoidable with proper hygiene practices and cleaning methods. These infections are known as Healthcare Associated Infections, or HAIs, and 1 in 25 patients will develop an HAI during their hospital stay. Unfortunately, 75,000 patients pass away from complications from these infections annually.

HAIs include:

  • HIV
  • MRSA
  • Pneumonia
  • The flu
  • UTIs
  • Tuberculosis
  • Staph infections
  • Hepatitis
  • Noroviruses
  • C. diff
  • Surgical site infections

While many think of HAIs as being related to handwashing and cleaning procedures, they can be more serious. For example, in 2009, the VA notified 3,000 veterans who had had colonoscopies in the Miami area VA hospitals because the tubing was rinsed off between procedures, but not disinfected, potentially exposing patients to HIV and hepatitis.

The cost of medical malpractice

In 2016, Johns Hopkins Medicine published a study in which they revealed that 250,000 people die each year due to preventable medical errors. Over 10 years, from 2003-2013, the VA malpractice payouts totaled $845 million, reaching $98.3 million in 2012.

Comparatively, the Harvard School of Public Health estimated that the total annual malpractice costs for the entire medical industry in 2008 was around $55.6 billion, with $45.6 billion of those dollars accounting for defensive medicine payouts. The cost of these two factors accounts for 2.4% of total health care spending each year.

With numbers like these, it’s not difficult to see the detrimental impact that preventable medical errors have on the overall cost of healthcare.

Options for pursuing medical malpractice at the VA

Veterans who have been victims of preventable medical errors resulting in serious injuries, pain and suffering and loss of wages have two options to pursue against the VA in order to receive compensation for these mistakes.

The first option is to file a Section 1151 claim, which is essentially a disability claim against the VA. The VA treats these claims as a service-connected disability, and compensation payments are paid accordingly. Some veterans find this to be the best course of action to receive compensation for medical negligence, especially if the disability is temporary. The burden of proof is also less than filing a lawsuit.

Most veterans who pursue an 1151 disability claim do not use a lawyer and find themselves having to pay out of pocket for costs associated with this sort of claim. If the VA denies the 1151 claim, veterans do have the option to appeal in court.

For more serious or permanent injuries resulting from medical malpractice, veterans can file a lawsuit using the Federal Torts Claims Act of 1946 (FTCA). To pursue this route, the burden of proof is much higher, and the deadline to file a claim against the VA must be done within two years of the initial injury.

Federal Torts Claims Act

An FCTA claim, “prescribes a uniform procedure for handling of claims against the United States, for money damages only, on account of damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of a Government employee while acting within the scope of his or her office or employment…”

Veterans who wish to pursue a medical malpractice lawsuit usually begin by submitting a Standard Form 95 Claim for Damage, Injury, or Death within two years of the incident. The form should also include all relevant medical documentation to help the office investigate the claim more quickly.

The claim must be submitted to the proper office, which is through the Chief Counsel of the local area where the injury or wrongful death occurred. The claim is then moved through to the Office of General Counsel.

The Office of the General Counsel and the local Chief Counsel have six months from the date of the submitted claim to conduct a full investigation of what occurred. Sometimes they will issue a decision, either in the claimant’s favor or against it; other times, the investigation is not completed within the six-month timeframe.

If they do accept the claim, they may offer to settle for a lower amount than the victim may want. If they rule against the claimant, the claimant can either request the office to reconsider or move forward with a federal lawsuit. The decision to move forward with a lawsuit must be made and filed within six months of the denial of the claim.

In Michigan and some other states, a doctor or team of doctors must review your case to assess whether or not medical malpractice did indeed occur before you can move forward with your lawsuit.

Statute of limitations exception

Some injuries do not show up or are not noticed until after the two-year statute of limitations clause is over. For instance, this may occur if a patient has had repeated visits to doctors with complaints of illness or injury, but the true underlying cause is not discovered in time. In some cases, judges will waive this clause in favor of a “discovery” clause, which waives this limitation and resets the clock at the time of discovery of the true underlying cause of the injury or illness.

While this is not always the case, if the victim can show plenty of proper documentation that they have been reasonably seeking answers for their medical issues, they have a strong case. A medical attorney well-practiced in this field can help their clients assemble this medical documentation and present it in a meaningful way to a judge.

Damages

While civil lawsuits ordinarily cannot be filed against the United States government because it is a sovereign entity and maintains immunity, the FCTA provides an exception to this law.

The damages under the FCTA are reliant on how much the victim has suffered, along with any economic losses that the victim has incurred as a result of negligence.

There is no limitation on damages a claimant can seek under the FCTA; however, the damages are limited to three categories:

  • Economic or special damages: these include loss of wages and medical bills.
  • Noneconomic or general damages: these include pain and suffering, emotional distress, mental anguish, and disfigurement.
    • In wrongful death cases, this can also include disruption to the family and emotional suffering.
  • Future damages: these include lost earnings, cost of future care, and loss of services due to the injury.

Am I eligible to file a lawsuit against the VA?

If you are a civilian employee, you cannot file a lawsuit against the VA or its entities. Civilian employee claims are processed through the Federal Employees’ Compensation Act or FECA. Likewise, if you are an active duty member of any of the armed forces, you are also barred from pursuing legal action against the United States government.

If you are a military retiree, spouse or child of a veteran or active military member, or a legal representative of a claimant or an estate, you are likely eligible to file a lawsuit, depending on the circumstances.

A spouse or child of an active military member must show that the injury or death of the military member directly caused harm to the spouse or child. A medical malpractice attorney would be able to assess the case and decide to move forward if the harm is provable.

What will my attorney’s fees look like?

Because the federal government is involved, there are maximum percentages placed on what attorneys can collect in their fees from a medical malpractice lawsuit filed against the VA.

If bad faith can be established in the case against the VA, the attorney can request that his or her fees be paid in full by the U.S. government. Otherwise, they are entitled to 20% of a claim settled out of federal court, and 25% of a claim in which the United States government is found liable. In regular medical malpractice cases, the standard attorney fees are around 30% of the claim, but some attorneys can charge up to 50%.

Most medical malpractice attorneys will take your case on what is called a contingency fee, meaning they only get paid if you win your case. If an attorney agrees to take your case on an hourly basis, then that is usually an indication they don’t find your case to be very strong. You may need to visit another attorney or gather more evidence for your case to move forward.

Is my case viable?

In the United States, only 2.9% of medical malpractice victims move forward with filing a claim. Most lawyers will explain to their clients that medical malpractice cases are difficult to litigate and often take years to resolve.

The burden of proof in any medical malpractice case is especially high, but when the federal government is the defendant, the stakes are even higher. A medical attorney will assess your case, your evidence, and your damage claims in order to help you decide whether moving forward with a full civil lawsuit is the best option.

Most malpractice lawyers have access to a team of experts, including doctors, who can provide testimony on your behalf. They also can have a team of legal assistants who can track down and investigate new angles of your case. When you have a successful and competent medical attorney on your side, you can be assured they will leave no stone unturned in your case.

For veterans, especially, the failures of the VA healthcare system are particularly unfair and jarring. While many reforms have been made to the VA system, including the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, there are still improvements to be made.

Final thoughts

If you are the victim of medical malpractice at the hands of the VA, or the family member of a veteran whose wrongful death was caused by the VA, you do have legal options you can pursue. The widely publicized failings of the VA healthcare system in recent years have shed light on the suffering of veterans and their families as a result of poor healthcare decisions and negligent healthcare providers. You are entitled to compensation as the result of these systematic and widespread failures.

If you suspect you are the victim of preventable errors, seek out the help of a medical malpractice attorney at Cochran, Kroll & Associates, P.C. immediately. Your attorney can help you assess your case, gather proper evidence, and fill out the complex paperwork that accompanies any legal filing. Your pursuit of justice for yourself and your family will pave the way for other veterans who are also victims of negligence and hold the VA accountable for the care they provide for the heroes who gave so much for our freedom.

If you or a loved one has been a victim of medical malpractice by the VA, please contact our law firm at 1-866-MICH-LAW (1-866-642-4529) for a free consultation with Eileen Kroll, an attorney, and registered nurse. We never charge a fee unless we make a recovery.

Ms. Barry is studying Communications at the University of Pennsylvania. She has won multiple awards both for her persuasive and creative writing and has written extensively on the topics of medical malpractice law, personal and birth injury law, product liability law. When she’s not researching and writing about these topics, she edits a literary magazine and tutors students at Penn’s writing center.

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