The Federal Tort Claims Act – A Process Explainer for Veteran Medical Malpractice

The central problem is that governments (states, the federal government, and governmental entities like the Veterans Administration) are immune from lawsuits under a legal doctrine known as “sovereign immunity.” The Federal Tort Claims Act (FTCA) is an exception to that general rule. But the process of bringing a medical malpractice lawsuit under the FTCA is complicated and unlike any other lawsuit. Don’t get discouraged; be prepared.

Here are three things you should do right away.

Stand up. Fight back.

Take these three steps:

• Consult a lawyer who specializes in FTCA claims. This is not a job for the guy who resolved helped you close on your house. Make sure that you understand at the very beginning how and for what your lawyer will charge. Most attorneys who take these cases charge on what is known as a “contingency basis.” You will owe your attorney nothing if you do not win. If you do win, the payment to your lawyer will be some percentage of your recovery. Expenses are sometimes billed differently.
• Hurry up and wait. You must begin the process within two years of the malpractice and the more time you can give yourself at the beginning, the better. But pack your patience; this process can take years.
• Finally, organize yourself to collect documents, medical records and other information you might use as evidence. Your attorney will help with this, but you may have to take the first step.

The administrative process

Step one in the process is to file an administrative claim form – Standard Form 95, “Claim for Damage, Injury, or Death.” The Form 95 is what must be filed within two years of the date of your injury, or the date you could be reasonably expected to realize that it occurred. (Think about an errant sponge left in your body after surgery.) The Form 95 must include a detailed description of the incident and the nature and extent of the injuries, as well as a specific monetary demand. This will require medical records, which take time to collect, so start early because the time limit is ticking down.

Step two is largely up to the federal agency whose employee’s actions are the basis of your claim. That agency has six months to review the Form 95. The agency can either offer a settlement or deny the claim. If the agency fails to act within six months, you have the option to treat the inaction as a denial. If the agency denies the claim or fails to act on it within six weeks, you may bring a lawsuit in federal court.

Step three is the lawsuit. The lawsuit must be brought within six months of the denial or deemed denial.

The lawsuit process

A lawsuit begins with the filing of a Complaint. The Complaint need not set out your whole case, but it must provide enough specifics for a court to determine whether a law has been broken.  The government will then file a motion to dismiss, the gist of which will be that your claim has no validity in law or in fact. They will likely have an advantage here, because your claim will have already been denied at the administrative level.

If your claim survives a motion to dismiss, the next step will be discovery. This can take 18 months or more. Each side must disclose all the information they have to the other side.

Medical negligence cases depend heavily on the testimony of experts – both as to what happened and whether medical professionals, including the VA hospital, acted in some way that was outside customary medical norms. This will be a war of experts.
At each and every point, but especially after discovery is completed, there will be renewed efforts to settle the lawsuit. Most cases that get this far settle, but some go all the way to trial. There may be some financial advantage in settling, even without the thrill of victory.

At trial, many issues will arise, including whether your injury was related to your active service in the military. Your lawyer will be the best source of information about these issues.

This “explainer” is not intended to be legal advice. This is only a brief explanation of the process, offered in the hope that more information can help you get a satisfying result.