Can persons injured by bad medical care in military and VA healthcare facilities sue for malpractice?
Yes. Congress enacted the Federal Tort Claims Act (“FTCA”) in 1946, giving veterans and their family members the right to assert a claim against the United States for personal injuries and wrongful death caused by the negligence of federal employees. This includes medical malpractice committed by physicians and other healthcare providers employed by the federal government.
How does your firm determine whether you will take a case?
After you contact us, we will ask you to send us records relating to your medical care. You will likely need to get these records from the hospital or clinic, but we can provide information about how to do this. Once we have reviewed the records and have talked with you, we will decide whether to file a claim. Sometimes we will need to have a doctor review the material and give us his or her opinions about the case. If we decide to take the case, we will send you a retainer agreement. The retainer agreement is the document by which you hire us as your attorneys. You do not pay us anything to represent you unless and until we obtain a recovery for you.
I've always heard that active service members cannot sue for poor medical care they receive in military healthcare facilities. Is this true?
Yes and no. Recently, Congress enacted a law allowing active-duty service members to make claims for medical malpractice. However, it is a much more restricted process than the FTCA. We do consider these cases and we have taken some.
If medical malpractice happens at an overseas military facility, can I make a claim?
Yes. There is a law called the Military Claims Act which allows for such claims. Such claims are more limited than ones brought under the FTCA. We have obtained recoveries for clients in Military Claims Act matters.
Will suing the United States over malpractice committed at a military or VA healthcare facility jeopardize my or my family's entitlement to medical care?
No. Absolutely not. Any form of reprisal against a party asserting his or her rights under the FTCA by an employee or agent of the United States would violate federal law. And over the last 20 years, we thankfully have never seen it happen.
Are there any time limits regarding when I can sue the United States for malpractice committed in a VA or military healthcare facility?
Yes. The FTCA sets a two-year statute of limitations for claims against the United States. Generally, the two-year period begins to run on the date the injury occurred or the date on which the injury was actually discovered (or reasonably should have been discovered by the injured person). Determining whether a case is barred by the statute of limitations is often a complex task and should be addressed by a competent lawyer who is familiar with the FTCA and its nuances.
Is there a special process for suing the government?
Yes. First, our firm must submit a formal claim on your behalf to the government. This is done on a Standard Form 95 (SF95), along with a detailed medical narrative prepared by our firm. The SF95 and its attachments describe the events and the injuries, as well as your damages. The government then has an opportunity to investigate the claim. Sometimes the government lawyers will ask for additional information or even want to talk with the injured party or their family. If the government promptly denies the claim, you may file suit in federal court. If an SF95 is filed and the government either fails to offer settlement or takes too much time to decide the case, a claimant can file suit after six months.
Are there legal caps on the amount I can recover?
While FTCA cases are a federal process, the FTCA borrows the “substantive” law of the state where the harm occurred. State law controls issues like damage caps (i.e., the maximum amount you can recover in a lawsuit under state law). This means that the rules applicable to any given FTCA case can vary hugely. For example, if medical malpractice occurs at a facility in Texas, that state’s $250,000 cap on pain and suffering damages would apply, but if the same injury occurred at a facility in Arizona there would be no such limitation because it is a state with no caps on your recovery.
Where do you file a lawsuit?
The case must be filed in federal court where the malpractice occurred or where you live. If you moved after the treatment or traveled to a distant facility for medical care, then you could file suit either where you were treated or where you now live.
Do I get a jury trial?
No. The FTCA does not allow jury trials. A federal judge considers the evidence and gives a verdict. One advantage to this process is that a case gets to trial more quickly and the trial itself is speedier.
If my case is settled or won at trial, what is your fee?
The FTCA limits attorneys' fees. If a case is settled before filing suit, our fee is 20% of the total recovery. After the suit has been filed, our fee is 25%.
How are costs like expert expenses handled?
As a general rule, we pay the costs of litigation as the case goes along. Those costs are then deducted from the recovery obtained.
Isn't it impossible to win a lawsuit against the United States?
No, not at all. The FTCA is a federal law that does provide the United States with a number of legal protections that private healthcare facilities and providers do not have. Nonetheless, many injured persons, including many clients of Rawls Law Group, have received settlements and verdicts against the United States for malpractice committed in VA and military health care facilities.
Do I need a local lawyer to file a claim against my local VA or military healthcare facility for malpractice?
No. While most medical malpractice claims are investigated locally, the persons responsible for settling serious malpractice claims are assigned to central offices, most of which are located in the Washington, D.C. area. Moreover, the United States cannot be sued in state court for medical malpractice. The suit must be brought in federal court under the FTCA, which is a federal law.
What if I have applied for, or am already receiving, "1151 benefits" for the same injury?
"1151 benefits" are a category of disability compensation similar to service-connected disability compensation, but for injuries caused by VA. However, VA cannot be made to pay twice for the same injury. Therefore, if you receive money through 1151 benefits and you later also receive money through an FTCA claim for the same injury, VA will temporarily stop paying your monthly 1151 benefits. After the amount you obtained through an FTCA claim has been "offset" (or paid back), your monthly 1151 benefits may resume.