Tort Claim Payouts for Injured Veterans: Can You Sue the VA?

If you were injured by a VA doctor or at a VA hospital, you may be able to sue the Veterans Administration for any pain and suffering, including emotional distress, resulting from medical malpractice. You have two options to get a payout from the VA—file a claim for disability compensation (commonly referred to as a Section 1151 claim) or seek damages under the Federal Torts Claims Act (FTCA).

You can file both Section 1151 and FTCA claims for the same injury, but you won't be able to get paid twice (with some exceptions). So if you get a tort claim settlement under the FTCA and you're awarded Section 1151 benefits as well, the VA will withhold payment of your disability compensation until the total amount of the settlement is offset.

How Do Section 1151 Benefits Differ from VA Tort Claim Payouts?

Under the FTCA, you can file a lawsuit when any employee of the VA acts negligently and causes you an injury. For example, the FTCA allows you to sue the VA if a janitor at a field office didn't put up notice of a wet floor on which you slipped and fell. In contrast, Section 1151 is limited to injuries resulting from a VA hospital, outpatient clinic, medical examination, or surgery.

This means that the FTCA covers many more acts of negligence than Section 1151 does, but it's usually less complicated to get benefits under a Section 1151 claim. The paperwork is easier to file, and the evidence required is typically less burdensome than an FTCA claim. There's also no statute of limitations on a Section 1151 claim, while tort claims must be filed within two years from the date of injury.

How to Sue the VA for Medical Malpractice by Filing an FTCA Claim

You should keep in mind that FTCA claims aren't easy to win, and you'll want assistance from a personal injury lawyer. The American Bar Association offers a directory of legal programs for military families that can help get you started with filing your claim.

Complete and Submit Standard Form 95

Your first step is to file an administrative tort claim with the VA. This is done using Standard Form 95, Claim for Damage, Injury, or Death. When filling it out, you should state what your injury is, what act of negligence you believe caused the injury, and the monetary damages you want to receive. For example, the form provides separate boxes for the amount you'd like to recover in property damage, personal injury, wrongful death, and "total".

When you file your form, the VA may require you to submit certain types of evidence to support your claim, including:

• itemized bills for medical expenses
• information about future expected medical expenses
• a statement from your treating physician
• a VA medical exam report (mental and/or physical), and
• a statement from your employer about your time away from work.

Unlike most other claims for veterans' benefits, you don't file Form 95 with your local VA office. Instead, you file it with the VA Office of General Counsel in Washington. Mail your completed application to the following address:

Department of Veterans Affairs
Office of General Counsel
Torts Law Group
810 Vermont Avenue, NW
Washington, DC 20420

You can also email a PDF of Standard Form 95 to [email protected] or fax it to (202) 495-5076. If you have any questions, you can call the office at (202) 461-4900. Note that the VA attorneys and staff can't offer you legal advice on your tort claim.

Filing a FTCA Lawsuit in Federal Court

If the VA notifies you that it has denied your administrative tort claim, you have six months from the date of that denial to file an FTCA lawsuit. (At this point, if you haven't already, you'll need to get a lawyer.) If the VA hasn't made a decision on your administrative claim after six months, it's called a "constructive denial." You still have six months from the date of a constructive denial to file an FTCA lawsuit—if you don't file within this time frame, you may lose your right to get monetary damages in federal court.

Getting Compensation for Malpractice Under Section 1151

If your disability worsened (or you acquired a new disabling condition) while you were getting medical treatment from the VA or during a VA employment program, you can get special compensation from the agency. In order to obtain Section 1151 compensation, a veteran must be able to show that the injury would not have occurred "but for" an action or mistake by the VA.

Establishing the Elements of Causation

You'll need to establish that the severity of your condition is a direct result of one of the following actions by the VA:

• carelessness or negligence
• medical or surgical treatment
• a health exam
• a vocational rehabilitation course, or
• compensated work therapy.

(Note that benefits will not be paid under Section 1151 to a veteran whose willful misconduct led to the injury.) Here's an example of when a veteran should be eligible for benefits under section 1151:

Keep in mind that the additional symptoms or limitations must not have been a reasonably expected result or complication from your medical treatment. So if your disabling condition is progressive (meaning it naturally gets worse over time), you won't be able to get section 1151 benefits unless there was a misdiagnosis by a VA doctor who reasonably should have made the correct diagnosis.

Getting a Medical Expert to Support Your Claim

You should, if possible, contact a private (non-VA) physician to review your medical records and make an independent assessment of whether medical malpractice occurred. The VA may deny your claim because the agency doesn't think that you proved that treatment from a VA doctor or facility made your condition worse, so it's helpful to get an outside opinion. A medical expert can also help show that the VA acted negligently in providing the care which led to your worsening condition or caused a new impairment.

Tort Claim Settlements and the Section 1151 Offset

Tort claims settlements and Section 1151 disability benefits are calculated and paid out differently. Money damages under the FTCA are based on your pain and suffering and the economic loss that has resulted from your injury, while Section 1151 compensation is evaluated based on how significantly your disabling condition interferes with your ability to work. Furthermore, Section 1151 benefits are paid monthly over a number of years, while you receive a lump sum payment if you win an FTCA lawsuit.

As mentioned above, while you can be awarded an FTCA settlement as well as Section 1151 benefits, the VA will generally hold onto your disability benefits until the total amount withheld equals the amount of your tort claim settlement (the "Section 1151 offset").

How to Avoid the Offset

Your attorney can structure your written FTCA settlement to avoid the offset, or at least to reduce it. Keep in mind that any offset won't begin until after the settlement or court judgment of your lawsuit becomes final. For example, while the VA is appealing a court decision in your FTCA case, you're entitled to your full Section 1151 benefits. For this reason, it can be beneficial to file for Section 1151 disability compensation as early as possible after your injury.

Exception: When the Offset Doesn't Apply

If your injury occurred while you were receiving treatment for a service-connected disability, and the injury caused a worsening of the service-connected disability or a new disability, any compensation you receive under Section 1151 won't be offset by an FTCA settlement. You'll be entitled to the full amount of increased disability compensation and FTCA damages without any reduction in your benefits.

Where Can I Find Lawyers Near Me Who Sue the VA?

FTCA cases are difficult to win and can go on for many years. You'll almost certainly want to find a personal injury lawyer who knows how to sue the VA. Section 1151 claims are slightly less arduous, but you may still wish to get help from an experienced veterans' attorney. Many lawyers who practice in these areas of the law work on contingency, meaning that they don't get paid unless (and until) you win your case. Depending on where you live, there may be several free or low-cost legal services that address veterans' needs, further easing the financial burden.