Can You Sue The VA For Medical Malpractice?

The Veterans Health Administration is the largest integrated health care system in the United States and serves nine million veterans each year. The United States Department of Veterans Affairs (VA) system provides care at 1,293 health care facilities, which includes 1,112 outpatient sites and 171 medical centers. With this many treatment centers, mistakes are bound to happen, which begs the question: Can you sue the VA for medical malpractice? The medical malpractice lawyers at Karlin & Karlin can provide more details about this complex legal issue. They can discuss your unique claim during a free confidential consultation, so consider calling (888) 295-0138.

Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) allows private citizens who are injured by the federal government or by one of its employees acting within the scope of his or her official duties to file a claim with the government for reimbursement. This law imposes strict limitations that military members and their families may pursue against the government, such as requiring them to first file an administrative claim against the agency they believe caused the harm.

To file a claim under the FTCA, a plaintiff must demonstrate that:

• A federal government employee caused the injury
• The government employee was acting within the scope of his or her employment
• The government employee acted negligently or wrongfully
• The negligence caused the victim’s injury

Feres Doctrine

Until recently, active-duty servicemembers were not allowed to file medical malpractice claims against the VA due to a little-known legal doctrine called the Feres Doctrine. This doctrine prohibited active-duty military servicemembers from filing medical malpractice claims against the VA under the FTCA due to a court ruling that found that active-duty servicemembers could not sue the government for injuries arising out of “activity incident to service.”

Under the FTCA and the Feres doctrine, only the following parties could sue the VA for medical malpractice:

• Dependents of military personnel, including spouses and children, who sustained injuries or wrongful death due to the negligence of a military medical provider
• Military veterans and retired servicemembers who sustained injuries at VA medical providers
• Non-active-duty servicemembers who were injured from medical treatment they received at United States military hospitals abroad

Richard Stayskal Medical Accountability Act

The prohibition of active-duty servicemembers from suing the federal government for medical malpractice has largely been lifted due to the Richard Stayskal Medical Accountability Act and amendments to the National Defense Authorization Act. This change became effective in December 2019 and allowed for active-duty servicemembers to file an administrative claim arising from medical malpractice by the VA or a federal employee. While there is still a prohibition against suing, the ability to file an administrative claim is still a considerable change and one that can allow servicemembers to hold doctors who are employed by the Department of Defense liable for their negligent treatment.

Examples of Medical Malpractice

As with civilians, medical malpractice involving military servicemembers, veterans, and their dependents may be due to a variety of mistakes, including:

• Misdiagnosis
• Failure to diagnose
• Delayed diagnosis
• Medication mistakes
• Surgical errors
• Post-operative mistakes
• Labor and delivery mistakes

Misdiagnosis

A misdiagnosis occurs when a healthcare provider diagnoses the patient for one condition when that patient actually suffers from a different medical condition. This mistake can cause problems for two reasons. First, the person may receive treatment for a condition he or she does not have, which may be more invasive than necessary or otherwise cause harm. Second, the patient may not receive the treatment needed for the medical condition the patient actually has, or that treatment may be delayed, giving the condition time to worsen.

Failure To Diagnose

Medical providers are expected to accurately diagnose a patient based on the symptoms he or she is experiencing and any diagnostic test results. Failure to diagnose occurs when a healthcare provider fails to diagnose the patient within the timeline that another healthcare provider would have reasonably diagnosed the patient given the same set of information.

Delayed Diagnosis

A delayed diagnosis occurs when a healthcare provider diagnoses a patient correctly, but the diagnosis comes later than it should have. Some medical conditions, like cancer, require an early diagnosis to provide the patient with the best chance for survival.

Medication Mistakes

Healthcare providers can make mistakes related to medications that are prescribed to patients by:

• Prescribing the wrong medication, dosage, or method of administration to the patient
• Not reconciling existing medications to avoid potential adverse side effects
• Not checking for known allergies to medication
• Administering medication to the wrong patient
• Not reading the prescription correctly
• Providing too much or too little anesthesia during a medical procedure

Surgical Errors

Surgeons can also make mistakes that amount to medical malpractice, such as:

• Performing the wrong medical procedure
• Performing surgery on the wrong side of the patient’s body or to the wrong body part
• Performing surgery on the wrong patient
• Using non-sterile equipment
• Nicking an artery or blood vessel during a procedure

Post-Operative Mistakes

Post-operative mistakes, such as failing to sterilize wounds or properly follow up with a patient after surgery, can also amount to medical malpractice.

Labor and Delivery Mistakes

Many children are born in military hospitals. Military doctors may make mistakes that harm the baby or mother, such as:

• Failing to adequately monitor the child’s or the mother’s vital signs
• Failing to order appropriate tests
• Failing to recognize signs of fetal distress
• Failing to order a C-section promptly
• Making vacuum extractor or forceps errors

Criteria To File a Claim as an Active-Duty Servicemember

For an active-duty servicemember to file an administrative medical claim, he or she must prove the following:

• That the servicemember was on active duty at the time of receiving the alleged negligent care
• That the act or omission that amounts to medical malpractice injured the servicemember
• That the servicemember received the negligent care at a military medical treatment facility that was not in a combat area
• That the servicemember made a claim within two years of the discovery of the injury

A medical malpractice lawyer with Karlin & Karlin can review your unique situation and help determine if you have a viable claim against the government.

Contact a Military Medical Malpractice Lawyer for Help with Your Claim

Medical malpractice claims involving the military are often difficult. A lawyer experienced with military medical malpractice can answer questions like, “Can you sue the VA for medical malpractice?” Consider contacting Karlin & Karlin at (888) 295-0138 to schedule a free consultation any day or time.