Guide To Suing The Department of Veterans Affairs
Guide To Suing The Department of Veterans Affairs
Guide To Suing The Department of Veterans Affairs
VETERANS AFFAIRS
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nursing facility – whose performance of duties departs from a standard of practice of those with
similar training and experience, resulting in harm to a patient. 1 Most medical malpractice actions
are filed against doctors who have failed to use reasonable care to treat a patient.
The goal of a medical malpractice lawsuit is to pay you back if a doctor injures you. Malpractice
lawsuits are time consuming and costly for doctors, even if the doctor is insured or wins the case.
The fear of malpractice is meant to keep doctors from making medical mistakes and from acting
carelessly. Malpractice puts the responsibility on doctors to act in a way that will not result in an
injury to you. If doctors are forced to pay for the costs of their medical mistakes, they will be
more careful to make sure that mistakes do not happen in the first place. 2 The same is true for
doctors and staff working in hospitals, clinics, and facilities under the control of the Department
Ordinarily the federal government is immune to lawsuits under the legal doctrine of sovereign
immunity, 3 the principle that prohibits a lawsuit against the U.S. government (and its agencies
such as the VA) unless the government consents to be sued. The Federal Tort Claims Act
(FTCA) provides an exception to this doctrine. Veterans and their dependants can sue the VA
Since its enactment in 1946, the Federal Torts Claims Act (FTCA) has been the legal mechanism
for compensating people who have suffered personal injury by the negligent or wrongful action
directly against the federal government for certain VA-caused injury or death, when that
individual has suffered damage or loss to real or personal property, personal injury, or death due
to the negligent actions of a federal government employee or agency acting within the scope of
employment. 5
There are several requirements that must be met for a medical malpractice claim against the VA
to be successful. These requirements must be pleaded adequately in the initial stages of the
claim for federal courts to confer jurisdiction over the matter and to award damages. The FTCA
exclusive jurisdiction of civil actions on claims against the United States, for
money damages, accruing on or after 1 January 1945, for injury or loss of
property, personal injury or death caused by negligent or wrongful act or omission
of any employee of the government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred. 6
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from (2) “injury or loss of property, or personal injury or death” due to the (3) “negligent or
wrongful act or omission” by (4) “any employee of the government “who was (4) “acting within
the scope of his office or employment” and (5) “under circumstances where the United States, if
a private person, would be liable” to the claimant (6) “in accordance with the law of the place
Two factors distinguish the FTCA from other governmental claims acts. First, there is no dollar
limitation on liability, and so multi-million dollar judgments have been obtained against the
government. 7 Second, the FTCA provides an administrative and a judicial remedy. A claimant
must first present a claim to the federal agency whose activities gave rise to the injuries and
allow the agency an opportunity to settle the claim. 8 If the agency denies the claim, takes no
action on the claim, or offers an amount that is unsatisfactory, the claimant may bring suit
For a claim to qualify under the FTCA, the claimant must specifically prove that the injury or
circumstances where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.” 10 This language is
important for two reasons. First, it provides that the law of the state where the injury
(malpractice) occurred determines whether the act or omission is negligent and, therefore, there
mandates that the culpable party be strictly defined as a federal employee acting within the scope
of his employment when the injury occurred. Therefore, under the FTCA, claims are brought in
federal district courts, without a jury trial, and not in state courts. 11 Claims, however, must
allege negligence as defined by state law, further compounding the interplay between federal and
Several questions are key to determining whether you have a valid claim against the VA for
What constitutes injury or negligence is determined under the law of the state where the alleged
malpractice took place while the determination of whether the perpetrator of the injury was a VA
employee is guided by federal law. At the very least, what you will need to show is that you
were a victim of negligence by a VA employee and that your current injuries are directly or
The following are brief examples of what kind of injuries have resulted in lawsuits and damages
for claimants:
• Metzen v. U.S. (failure to place hypertensive patient on cholesterol diet was basis for
disability in death by heart attack); 12
• Newmann v. U.S. (vestibular damage from gantamycin – judgment of $1,674,495); 13
The following are the kinds of damages that you may be entitled to if your medical malpractice
these damages. 40
ii. Economic or Special Damages. These are losses that are particular to the
specific claimant and injury as a result of the tortious conduct. They may
include lost wages and services, cost of medical care, and disability.
iii. Future Damages. Those economic and noneconomic damages that are
reasonably certain to flow from the injury after claim is settled. In many
There are two issues involved here that must be resolved before a claim under the FTCA will be
successful in proving medical malpractice by the VA. The claimant must first prove that the
person who committed the negligent act (medical malpractice) was an employee of the federal
government (whether military or civilian personnel). The claimant must then prove that the
person was acting within the scope of his employment when committing the injury. 41 The U.S.
Attorney General, who defends the VA in such claims in federal court, is required to certify both
Federal law determines who is an "employee" but scope of employment issues under the FTCA
are decided by state law of the place where the tort occurred. The FTCA defines “employee of
the government” to include “officers or employees of any federal agency . . . and persons acting
the United States, whether with or without compensation.” 43 A “federal agency” includes: “the
executive departments and independent establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of the United States but does not include any
Many VA hospitals and facilities currently hire independent contractors to perform medical
procedures and provide health care. These individuals are not considered government employees
and so their tortious conduct will not give rise to a claim under the FTCA, 45 unless the
substantial supervision over contractor’s day to day activities.” 46 The government often denies
liability and contends that the alleged negligence was not caused by an employee but an
independent contractor or the employee of an independent contractor. This legal defense is very
effective unless dealt with adequately, as VA medical centers and military medical centers
Certain relationships between a private business and the government may involve dual capacity.
and as an employee. A second situation might involve differing degrees of government control
over separate aspects of the same job. In each situation, the claims officer must isolate the
portion of work out of which the claim arose. If an employer-employee relationship is present,
the government may be held liable. If the injury was caused by an independent contractor or his
employee, the government is not liable. The independent contractor, and the employee, can still
Army medical residents who are receiving training in a civilian hospital are federal employees
while in the civilian hospital. 48 The question of whether their performance of duties in the
civilian hospital is within the scope of their military employment will depend upon the specific
facts of each situation, including the provisions of the contract involved and the provisions of the
state law. 49
professionals working at a Military Treatment Facility (MTF) are federal employees; however,
such is often not the case with civilian medical personnel that are working at the MTF under a
variety of programs or contracts with the United States. Civilian Health Care Providers (HCP) at
a military treatment facilities (MTF) are normally not federal employees unless they are
The Military-Civilian Health Services Partnership Program was created by DOD in 1987. The
most common such program allows MTFs to enter into formal agreements (not contracts)
whereby HCPs are allowed to use government facilities to treat CHAMPUS eligible patients.
Such HCPs are neither federal employees nor technically, a contract employee, but they are
treated similar to independent contractors as the United States does not exercise day-to-day
Primary Care for the Uniformed Services (PRIMUS) program clinics are private, freestanding
medical facilities that provide health care to beneficiaries under contractual agreements. The
HCPs who work at PRIMUS clinics are considered employees of an independent contractor, not
federal employees. 51
Civilian residents training in United States government MTFs pose the question as to who is
responsible for their tortious conduct. The same question is raised when DOD HCPs are doing
their residency in a civilian facility. Whether the borrowing facility will be liable is based on
how the state interprets the borrowed or loaned servant doctrine, which purports to shift
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master. 52
31 U.S.C. § 1342 provides that no officer or employee of the United States shall accept voluntary
service for the United States or employ personal services in excess of that authorized by law,
except in case of emergency involving the safety of human life or the protection of property.
There are a few statutory exceptions who are considered Federal employees for purposes of the
FTCA: Red Cross Volunteers who meet certain criteria; Student volunteers, employed pursuant
to 5 U.S.C. § 3111(b); Health care services volunteers, as well as family support programs,
educational, housing referral, and other morale, welfare and recreational programs can all be
considered federal employees for purposes of the FTCA and MCA. 53 To be deemed a federal
employee, the volunteer must be properly accepted by the Federal agency and be performing
within the scope of the accepted voluntary services at the time of the incident.
Scope of employment is defined as “the range of reasonable and foreseeable activities that an
employee engages in while carrying out the employer’s business.” 54 Under the FTCA, the
question of whether a federal employee is acting within the scope of employment at the time of
an accident so as to make the United States liable in tort is one to be decided by applying the law
of the place where the incident occurred. 55 Consequently, the outcome of cases with similar
facts may vary considerably from jurisdiction to jurisdiction but the issue usually turns on: (1)
control exercised by the employer over its employee, and (2) the degree to which the employer’s
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Therefore, any employee of the VA is an employee of the government and as long as such an
employee harmed you during the course of an approved treatment, you will have a valid medical
The injury could have occurred any place under the control of the U.S. government as long as
operated under the VA, for the purposes of analyzing medical malpractice claims. This includes
military hospitals, military bases, and VA facilities and clinics. Any medical malpractice that
takes place in a foreign country, however, cannot be sued upon, even if it occurs on a U.S.
military base. 56
The United States has not waived its immunity from suit for claims arising in a “foreign
country.” The exception applies regardless of the citizenship of the claimant. The dependent of
a U.S. service member in Germany must, therefore, resort to other claims statutes to redress
government negligence. 57
A “foreign country” is any land area outside of the control of the United States. The Supreme
Court clarified the scope of the exception in 1993 when it applied the foreign country exception
to bar the FTCA suit by the widow of a construction worker killed in Antarctica. 58 The Court
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Antarctica because there is no sovereign government there. Similar cases have denied
FTCA recovery for incidents occurring in United Nations trusteeships, 59 air space over foreign
countries, 60 or on the grounds of an American embassy abroad. 61 The foreign country exception
does not, however, bar torts occurring on the high seas or in aircraft flying over the high seas. 62
The exception also does not apply when the negligence occurs in the United States but has its
While a claim for medical malpractice against the VA is brought pursuant to state substantive
law in federal court, the statute of limitations is not determined per each state’s own law.
Instead, the FTCA provides for specific guidelines on how long one can wait before bringing
action against the VA and unfortunately, this is a relatively short period of time. Furthermore,
there are two steps involved in filing a successful claim; therefore, claimants are well-advised to
A. STATUTE OF LIMITATIONS
A claim for medical malpractice under the FTCA must not have accrued more than two years
ago. 64 The federal statute of limitations for claims under FTCA provides two timelines: (1) an
administrative claim must be filed within two years of the date the claim accrues first; and (2)
suit must be filed within six months of an agency’s final denial of the claim. What constitutes
accrual at each stage and how it is measured is a source of controversy and variation.
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The FTCA requires that a claimant file an administrative claim with the VA, and receive an
explicit or constructive denial of that claim before presenting the FTCA claim in federal district
court. 65 This filing must take place within “two years after such claim accrues.” 66 This is
generally defined as from the time the injury took place. 67 However, in many medical
malpractice suits, the claimant is either unaware of the existence of the injury or the causal
relation between the VA treatment and the injury till after two years have passed. There is good
news for such claimants as several federal judicial circuits apply a “discovery rule” when a
patient is misinformed about the reason for an unfavorable medical outcome. In such cases, the
accrual begins to start from the time when the claimant discovered, or by reasonable diligence
should have discovered, the injury and its connection to the VA treatment; 68 in short, from the
time the injury and its cause should have been discovered by a reasonable person. This can often
After the claimant has filed an administrative claim with the VA, the claimant must wait at least
six months for a response from the VA. If in the six month period, the VA denies the claim,
does not respond to the administrative filing, or offers an unsatisfactory settlement, then the
claimant can file an FTCA claim for medical malpractice within 6 months from the actual or
constructive denial by the VA. Therefore, in essence, these are two separate filing requirements
and both must be met within two years from when the claim first accrued.
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It may be possible in some cases to toll or stall the running of the statute of limitations.
Infancy 69 or incompetence 70 generally will not toll the statute. In both situations, a guardian or
next friend can initiate the claim and file suit in federal court. However, if the government’s
negligence has caused the claimant’s incompetence, then courts may find that the claim did not
accrue, because the plaintiff lacked the mental capacity to understand the significance of the
relevant facts. 71
Continuous medical treatment from government sources may also toll accrual of a plaintiff’s
claim. 72 Additionally, courts have found that reassurances by government physicians that
medical complications are “normal” or of no concern may delay the plaintiff’s knowledge of his
injury and postpone the running of the statute of limitations. 73 Fraudulent concealment is
another exception to the FTCA statute of limitations. While the government has no duty to
admit fault or responsibility for a claimant’s injury, the agency may not conceal the facts needed
A. PROPER CLAIMANTS
Individuals, private corporations, governmental entities, aliens, and insurance companies may all
assert claims against the government under the FTCA. The proper claimant for property loss or
damage is either the owner of the property, an authorized agent, or a legal representative. 75 An
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negligence.
CLAIMANTS
An authorized agent or a legal representative may also present a claim for personal injury on
behalf of the injured claimant. 76 When a minor is the injured person, two causes of action result
under the laws of most states. One claim belongs to the child and another to the parents for
medical expenses and loss of services. State law determines who may present the claim on
behalf of the child. Derivative claims are separate and must be filed as such. 77 The executor or
administrator of the decedent’s estate or any other person legally entitled to assert such a claim
under the applicable state law may present a claim based upon death. 78 The amount allowed
will, to the extent practicable, be apportioned among the beneficiaries as required by the
applicable law.
C. CIVILIAN EMPLOYEES
Civilian employees of the United States, on the other hand, receive workers’ compensation
coverage under the Federal Employees’ Compensation Act (FECA). 79 FECA provides
compensation where the federal employee is killed or injured “while in the performance of . . .
duty” and bars FTCA claims based on the initial injury and any medical treatment stemming
from the injury. 80 Litigation involving FECA usually turns on whether the employee was “in the
performance of . . . duty” at the time of the injury, and this issue will be elaborated on in the final
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D. MILITARY CLAIMANTS
Unfortunately, under the FTCA, active duty military personnel are barred from suing the U.S.
government for injuries sustained as a result of negligent conduct. A seminal Supreme Court
decision has held that such injuries are “incident to service,” under the Feres Doctrine. 82 In
determining if an injury was incident to service, courts have usually considered three factors:
(1) the function or activity being performed at the time of the injury; i.e., whether
the plaintiff was engaged in some military-related activity, using a facility, taking
advantage of a privilege, or enjoying a benefit available because of his military
status; (2) the situs of the injury; i.e., whether the plaintiff was on or off the
military installation when the injury occurred; and (3) the duty status of the
plaintiff at the time of the injury; i.e., whether on duty or on pass, leave, or
furlough. 83
Various courts dismiss FTCA claims by military personnel, citing any one of these factors as
controlling in the “incident to service” analysis. 84 The Feres doctrine also extends to National
Guardsmen when engaged in guard activities, 85 service academy cadets, 86 Public Health Service
officers, 87 foreign military members in the United States training with U.S. forces, 88 and service
members on the Temporary Disability Retired List. 89 The bar has also been applied to ROTC
cadets. 90
Feres does not bar claims by spouses or dependents who are personally injured by government
negligence, regardless of the situs of the injury, 91 but will generally bar any claim arising out of a
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spouse. 92 Therefore, dependents of soldiers may file an FTCA claim for medical malpractice
against the VA if they suffer any injuries due to the negligence of a VA employee. One of the
more confusing and controversial applications of the Feres bar involves injuries to an unborn
fetus. The circuits have split on whether a claim is Feres barred as a derivative claim for
treatment of the service member mother 93 or valid as an independent right of action for the
child. 94
F. RETIREES’ CLAIMS
Feres does not bar the tort claims of military veterans if the tortious act occurred after the
claimant left military duty. 95 The key issue is whether the alleged injury is separate and distinct
from any acts before retirement/discharge. 96 This exception allows retired and discharged
veterans receiving treatment in a military medical facility to claim under the FTCA for medical
malpractice but only for those injuries sustained not incident to service.
As mentioned above, a claimant’s first requirement is to submit an administrative claim with the
“agency whose activities gave rise to the claim.” 97 This is a requirement (condition precedent) to
any claim for medical malpractice against the U.S. government, and not subject to waiver or
avoidance. 98 Thus, the claimant must file an administrative claim at the regional VA office. The
agency must be given at least six months to respond to the claim. This allows the agency to
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neither settled nor finally denied the claim within six months, the claimant may “deem the claim
Once filed in the appropriate regional district court, the U.S. Attorney General will defend the
claim on behalf of the United States. After the Attorney General has certified that the named
defendant was a government employee functioning within the scope of his or her employment at
the time of the tortious act, the U.S. is substituted as the named defendant. 100
Standard Form 95 (SF95) is used to file the claim in district court and it must specify, in block
12d, a sum certain that the claimant is suing for. 101 FTCA provides remedy for monetary
damages only, and any amount listed in SF95 is considered a limit on the amount being sought.
The “sum certain” requirement dictates the claims approval and denial authority, which is based
on the dollar amount of the claim. Plaintiffs may recover an amount greater than that demanded
in the administrative claim only upon a showing of “newly discovered evidence not reasonably
discoverable at the time of presenting the claim to the federal agency, or upon allegation and
proof of intervening facts relating to the amount of the claim.” 102 Claimants may also be
required to submit evidence and other information to substantiate their claims. 103 Failure to
document or substantiate a claim may invalidate an otherwise valid claim. 104 If litigation goes
forward in district court, then claimants are entitled to a bench trial since jury trials are not
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For most individuals, litigation with the U.S. government can be intimidating for a variety of
reasons, especially due to the financial burden of paying the costs of litigation and attorney’s
fees. In response to these concerns, the FTCA provides a cap on how much money successful
claimants would have to pay their attorneys. If the VA settles your claim in the first step before
litigation commences in federal district court, then your attorney is entitled to twenty percent of
the award. If the claim goes to litigation and you prevail in district court against the United
States, then your attorney is entitled to twenty-five percent of the final award. It is also possible
to get the U.S. government to cover the cost of the attorney’s fees if bad faith on behalf of the
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1
ABA Family Legal Guide: Medical Malpractice, http://public.findlaw.com/abaflg/flg-17-3b-1.html (last visited
November 29, 2010).
2
Id.
3
28 U.S.C. § 1346.
4
U.S. Dep’t of Health & Human Servs., Federal Tort Claims Act, http://bphc.hrsa.gov/ftca/ (last visited November
29, 2010).
5
28 U.S.C. §§ 1346(b), 2671-2680.
6
U.S.C. § 1346(b) (1994).
7
See, e.g., Elliott v. U.S., 13 F.3d 1555 (11th Cir. 1994) ($14 million); Reilly v. U.S., 665 F. Supp. 976 (D.R.I.
1987) ($11 million); Hull by Hull v. U.S., 971 F.2d 1499 (10th Cir. 1992) ($8.1 million); Murphy v. U.S., 833 F.
Supp. 1199 (E.D. Va. 1993) ($3.5 million); Phillips v. U.S., 801 F. Supp. 337 (D. Idaho 1992) ($7.7 million).
8
28 U.S.C. § 2675 (1994).
9
28 U.S.C. § 2401(b) (1994); 28 C.F.R. § 14.9(b) (1996).
10
28 U.S.C. § 1346(b)(1).
11
28 U.S.C. § 2402 (1994).
12
19 F.3d 795 (2d Cir. 1994).
13
938 F.2d 1258 (11th Cir. 1991).
14
936 F. Supp. 662 (E.D. Mo. 1996).
15
958 F. Supp. 312 (W.D. Ky. 1997).
16
Civ. # 95cv241 (E.D. Va., Sept. 23, 1995).
17
752 F. Supp 764 (E.D. Mich. 1990).
18
Civ. # 91-820-Civ-J-16 (M.D. Fla., 21 July 1993).
19
859 F. Supp. 22 (D.D.C. 1994).
20
853 F. Supp. 1430 (M.D. Ga. 1994).
21
742 F. Supp. 402 (W.D.Ky. 1990).
22
537 F. Supp. 147 (D. Or. 1982).
23
483 F. Supp. 581 (N.D. Cal. 1980).
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