When the Veterans Health Administration Commits Medical Negligence

While many of us think of the US Department of Veterans Affairs as a single entity, its functions are actually divided among three separate administrations:  The Veterans Benefits Administration, Veterans Health Administration, and the National Cemetery Administration. The Veterans Health Administration, or VHA, reports that it currently administers over 1,700 health care sites, providing medical services to 8.76 million veterans annually. It is the largest integrated health care system in the United States.

Feelings about the VHA differ among veterans. Some have been very happy with the services they have received from the VA’s hospitals and clinics, while others have been very disappointed. Those sentiments aside, it must be acknowledged that in any organization the size of the VHA, mistakes are going to be made from time to time. Veterans who are the subject of medical negligence at the hands of the VA have several options for addressing the issue.

First, if a veteran becomes disabled or dies as the result of medical negligence by the VA he or she is entitled to file a claim under 38 U.S.C. § 1151. These claims, commonly referred to as “1151 Claims”, are filed directly with the VA. If granted, the VA is required to treat the disability or death as if the death or disability were a service-connected. As a result, a grant of this type of claim will entitle the veteran to receive monthly disability payments. While a veteran is entitled to pursue this type of claim on his own, he is also permitted to use the assistance of an attorney or non-attorney advocate.

A second option available to the harmed veteran or, in the case of death, his family is to file a medical negligence lawsuit against the VA under the Federal Tort Claims Act. Such a lawsuit would typically require the court to apply the law of the state in which the claim occurred, but would require the veteran to comply with the procedural requirements of the FTCA. Two significant issues generally arise in connection with these types of lawsuits. First, the veteran will want to understand the law of the state in which his claim arises, particularly as it may relate to any caps that the state has imposed with respect to damages. Second, the veteran will need to be wary of the strict time limits imposed by the FTCA. He would be well advised to seek the assistance of legal counsel as soon as possible if he desires to explore such a lawsuit against the VA.

Finally, veterans should be aware that they are not required to choose between the two options discussed above. The law currently permits a veteran to file an 1151 Claim as well as a lawsuit if desired. However, if both are pursued the veteran should be aware that there are certain circumstances in which one award may be offset by the other in order to avoid double recovery.