Veteran’s Administration (VA) health centers and hospitals exist to provide medical to current and former service members and their families. These facilities are staffed by competent and experienced professionals whose goals are to provide you with the best of care. But accidents happen, just like they do in non-VA hospitals, and sometimes those accidents can harm the patients. In fact, as of September 2013, malpractice payouts to U.S. veterans were at a 12-year high.
In a non-VA setting, an injured patient can file a malpractice suit against the doctor or hospital that did him harm; in a VA setting things work a little differently. Below is an examination of the process by which you would file a medical claim against the VA.
How to File
When you suffer a medical injury from a VA healthcare provider, you have two options for filing a claim:
· The Federal Tort Claims Act; and,
· The 1151 claim.
The Federal Tort Claims Act
Under the Federal Tort Claims act, you need to file a SF Form 95 with the VA within two years of the date the injury was discovered. For example, if you had surgery on August 5th, 2014 but you don’t start having serious complications until September 9th, 2014, then you have until two years from September 9th to file the claim.
The best case scenario is when the medical facility gives you the SF Form 95 without you having to ask; because that means they are essentially saying there could be problem. However, in many cases, it’s the patient, or surviving family, that suspects there is a problem, and they have to request the form from the VA or from the facility. Once you turn in the form, the VA has six months to either:
· Pay the claim in full;
· Settle the claim for less;
· Reject the claim; or,
· Ignore the claim.
If the VA reject or ignores the claim, you then have the option to file a suit in federal court.
The 1151 Claim
The 1151 Claim refers to 38 U.S.C. 1151, which states that a veteran, or his surviving family, is entitled to VA disability compensation if his disability or death was a result of medical or surgical care, examination, or treatment furnished by the VA, and the disability or death did not result from the veteran’s own willful misconduct.
Unlike the Federal Tort Claims Act, there is no statute of limitations – you can file a claim at any time, but if you file within one year of the date of injury or death, you will be eligible for benefits retroactive to that date if the VA accepts your claim. Otherwise, the benefits will begin from the date the VA receive the claim. Also, there is also no specific form to file; instead, you must submit a claim in writing, preferably via certified mail, making it clear that you are seeking 1151 benefits. There is also no deadline for the VA to review your claim.
You can also file claims under both options, but if you receive a settlement through the Federal Tort Claims Act, it could reduce any benefits you receive under the 1151 Claim.
For the Best Result
The explanation above makes the process sound fairly straightforward, however things rarely are as easy as they seem on the surface. For example, if you fill out the SF Form 95 incorrectly, that could cause the VA to dismiss your claim. Additionally, once you file the claim, you can’t change the amount of your claim if you discover additional damage.
Your best option is to enlist the services of a lawyer that is familiar with both malpractice law and with the Federal Tort Claims Act. Some firms specialize a variety of cases, such as products liability, electrical injuries, pharmaceutical lawsuits and others. Additionally, while the primary intent is to make sure everything is done properly–so that the VA pays out and you don’t have to go to court–if it comes to that, these firms can help you take your claim to the federal courts. And since you have worked with them from the beginning, they will already be intimately familiar with your case.
