VA Medical Malpractice: What You Need to Know

Ultimately, only a judge can make a final determination about whether a case is valid. At every step along the way, both the VA and our office will seek medical opinions, review records, and consult with experts to evaluate the strength of your claim. The key questions are whether the VA’s care fell below the standard of care, and whether that failure caused you a serious injury.

Generally speaking, all treatment at a VA facility is subject to the Federal Tort Claims Act. However, if you received a referral for community care from the VA and were treated by a private doctor under a Community Care program, that treatment usually is not subject to the FTCA. In that situation, your case would proceed as a standard state-law medical malpractice claim.

If multiple VA employees were involved, then yes, you can bring a single claim. This is actually one of the advantages of suing under the Federal Tort Claims Act. In a private case, you might have to name multiple providers and facilities separately, but under the FTCA your claim proceeds against the United States itself, so you can recover for multiple instances of negligence in the same lawsuit.

If some of your injury was caused by non-VA doctors working outside the VA system, the case becomes more complicated, but you can often bring claims against multiple providers.

Usually, contractors working inside VA facilities are covered by the Federal Tort Claims Act. However, it depends on the terms of their contract and other factors. We will need to look closely at the specifics of your case to ensure that recovery against the contractor is properly pursued.

Yes. If the VA failed to provide you informed consent, you may be able to bring a claim—particularly if you can show that had you been given proper information about the risks, you would not have undergone the procedure.

Yes, especially if the delayed diagnosis prevented you from receiving treatment that would have avoided a bad outcome. However, if the VA eventually made the correct diagnosis and provided the appropriate treatment, and the delay did not affect the outcome, that is generally not a strong malpractice case. To recover, you typically need to show a serious and permanent negative outcome as a result of the diagnostic delay.

If a VA provider prescribed the wrong medication or a VA pharmacy dispensed the wrong drug, you can recover. However, if the VA provider wrote the correct prescription and it was filled at a non-VA pharmacy, or if you inadvertently misused the medication yourself, you likely cannot recover against the VA.

Yes. Because your FTCA claim proceeds against the United States itself, you can include multiple instances of negligence—even by different providers at different VA facilities—in the same lawsuit.

Medical malpractice claims under the FTCA must be brought within two years. If you were not aware that the malpractice occurred, you may be able to extend that deadline. However, once more than two years have passed from the date of treatment, the statute of limitations has generally expired, and you will be unable to pursue your claim.

If you miss the deadline, your claim may be permanently barred. While certain narrow circumstances may allow you to file beyond two years, it is not certain that you will be able to recover. This is one of the most important reasons to contact an attorney as soon as you suspect something went wrong.

Generally, the statute of limitations runs from the time the care was provided. However, if the malpractice did not become apparent until later, the clock begins when a reasonable person would have become aware that malpractice may have occurred.

The VA’s failure to tell you about an error may affect the timing of your case based on the discovery rule for the statute of limitations. However, the VA’s refusal to admit or acknowledge wrongdoing generally does not prevent you from bringing a claim or significantly affect the merits of the case. It is more common than not for the VA to deny wrongdoing.

Yes. The Federal Tort Claims Act requires that you file an administrative claim with the agency before you can bring a lawsuit. Our office will file this claim on your behalf and negotiate with the VA to determine whether there is an opportunity to resolve the matter before litigation.

The SF-95 is the form the government uses to evaluate your claim at the administrative phase. There are several important requirements. First, you must describe the nature of your claim clearly enough that the agency can evaluate what you are seeking. Second, you must state a specific dollar amount—a “sum certain”—for the damages you are requesting. Vague language like “all my future care,” “damages to be proved at trial,” or “full policy limits” will not suffice.

I would not count on it. While the sum certain can be increased if additional damages are discovered later, courts generally do not allow claimants to increase the demand absent very specific requirements. This is why we advise clients to seek the highest realistic, well-supported amount at the outset.

The VA must be given a minimum of six months to respond. However, there is no maximum timeframe by which they must respond. If they do not respond within six months, you have the right to file a lawsuit. In practice, it typically takes between nine and twelve months for the VA to respond.

We generally advise clients to wait for the VA’s response before filing suit, because there is often an opportunity to settle the claim without litigation—which is more cost-effective and faster. However, if the VA fails to respond after a reasonable amount of time, or if they deny the claim, we will initiate litigation.

If the VA denies your claim, you can seek reconsideration. However, we typically move directly to the next phase, which is filing a lawsuit in United States District Court.

First, our office reviews your medical records. We use expert witnesses, medical journals, electronic research tools, and our own experience to determine whether the records show that the VA failed to meet the standard of care.

Next, we compile your records and supporting information into an administrative demand, which we send to the VA. The VA then has at least six months to decide whether to settle. We typically wait for a response, which can take six to twelve months.

If the VA denies the claim or fails to offer compensation that you feel is adequate, we file a complaint in United States District Court. Once in court, the process typically takes one to two years and sometimes longer. The main phases are: filing the complaint, engaging in discovery (exchanging information and taking testimony), retaining expert witnesses, filing motions, and often attending a settlement conference before a judge. If the case cannot be settled, the court will set it for trial.

In FTCA cases, the trial is held before a judge—there is no jury. The court hears testimony, reviews exhibits, and listens to expert witnesses before making a determination about liability and damages. After trial, there is a possibility of appeal.

The minimum time to resolve a claim is usually about one year, if the VA accepts the administrative claim and offers a sufficient amount. If the VA does not resolve the claim, a timeline of two to three years—or even longer—is more realistic.

You can file a claim—and even initiate a lawsuit—without an expert. However, it is very rare that you can prevail without one. An exception might be something obvious, like a surgical instrument being left inside a patient. In most cases, you will need at least one expert, and often more, to prove that the VA providers fell below the standard of care.

Proving causation is one of the most difficult aspects of a VA medical malpractice case. It requires a careful review of the medical records—including those documenting preexisting conditions—and a thorough analysis of how the VA’s negligence contributed to the injury. In almost all cases, this requires an expert witness who can testify, based on their review of the records and their professional experience, about the cause of the injury.

Many medical procedures can have bad outcomes even when performed correctly. However, saying that a patient undertook a risky procedure does not shield the VA from liability. We work carefully with experts and gather evidence to determine whether a bad outcome was the result of negligence or simply the known risk that accompanies every procedure.

This is one of the most challenging aspects of medical malpractice. If someone leaves a surgical instrument inside a patient, the case is straightforward. What requires careful and experienced lawyering is showing that a procedure carrying known risks was performed in a way that caused those risks to materialize through negligence.

The VA uses its own doctors and providers to evaluate claims. If you do not have a strong case, they are unlikely to settle, and you will not prevail at trial. Furthermore, even if you have a strong claim on liability, if your damages are not significant, the expense, uncertainty, delay, and stress of a lawsuit may not be worthwhile. Both the strength of your claim and the severity of your damages matter.

The best way to get your VA medical records is to go in person to the VA records office and request a complete copy. They usually provide this on an optical disc. If we have to request records on your behalf — or if your case requires records from other federal agencies through a Touhy request — it can take longer, and we often do not receive a complete set on the first attempt, requiring us to follow up.

Generally, the VA is required to provide you with all of your medical records. If the case goes to litigation, the VA is generally not permitted to conceal records.

Determining causation between multiple providers is one of the most difficult aspects of medical malpractice. We will review your case closely and work with experts to evaluate which providers are ultimately responsible. You can name non-VA providers in the same lawsuit as the VA, though they operate under somewhat different rules. This is a complex area, but one we handle in appropriate cases.

The types of damages you can recover actually depend on what you could recover in the state where the malpractice occurred, because the federal court borrows from state law. Typically, you can recover for pain and suffering, disability, lost income, loss of household services, and past and future medical expenses incurred outside the VA.

There are no limits on total recovery. However, many states—including Nevada—cap general damages for pain and suffering. In Nevada, pain and suffering is currently limited to $590,000, and the amount increases slightly every year. There is no cap on special damages, which include lost income, past and future medical expenses, and loss of household services.

Yes, but only up to the limit imposed by the law of the state where the malpractice occurred. In Nevada, the noneconomic damages cap is currently $590,000, and it increases slightly each year under NRS 41A.035.

If the malpractice caused a permanent disability, we will seek damages for all necessary future care, lost income, loss of household services, and pain and suffering up to the applicable cap.

If the malpractice resulted in the veteran’s death, the veteran’s heirs can seek recovery through the probate process for their loss of society, comfort, and companionship; for the decedent’s pain and suffering prior to death; and for the loss of the decedent’s financial support and household services.

Yes, under two circumstances. First, if the veteran passed away, the family members are the primary parties in the lawsuit and can recover for their grief, sorrow, and loss of the decedent’s society and comfort. Second, even if the veteran is alive, a spouse often has a claim for loss of consortium and loss of household services that the veteran would have provided had they not been injured.

Like most civil cases, these claims are usually settled. However, in many instances, a trial is required. We are prepared to take your case through trial and beyond, if necessary.

No. FTCA cases are decided by bench trial—a judge only. In rare circumstances where a non-VA provider is also part of the lawsuit, there may be a jury for the claims against that provider. But the claims against the VA will always be decided by a judge.

If the case proceeds to litigation, you will generally be deposed. If it goes to trial, you will usually be required to testify. However, if the case resolves at the administrative level, testimony is not required.

Having spent over ten years defending these cases on behalf of the government (read more about Troy’s background), I am familiar with the variety of strategies they use. Typically, the government does not try to make the veteran look bad or greedy—that approach can backfire. Instead, the government focuses on the VA doctor using their judgment and skill to the best of their ability, sometimes under difficult circumstances.

The government will emphasize that medical treatment carries unavoidable risks and that a bad outcome does not necessarily mean a provider made a mistake. They will also focus on any inaccuracies, exaggerations, or credibility issues in the veteran’s testimony or conduct. This is why it is critical to have an attorney guiding you, so that you do not inadvertently undermine your own credibility.

If the VA offers to settle, we will have a detailed conversation about the offer and the potential outcomes, but the decision is ultimately yours. Litigation takes a long time and is inherently uncertain, so keeping in mind the time value of money—and the old adage that a bird in the hand is worth two in the bush—is wise.

That said, the VA often significantly undervalues claims at the administrative phase. The VA has limited settlement authority, so for claims with significant damages or wrongful death, it frequently makes sense to litigate. We will give you our honest assessment so you can make an informed decision.

Most medical malpractice attorneys take FTCA cases on a contingency basis, meaning they do not charge the client for the work performed. Instead, the attorney receives a percentage of any recovery. While malpractice attorneys in Nevada typically charge around 33–40% in state cases, the Federal Tort Claims Act limits fees to 25% of the recovery if the case goes to litigation, or 20% if it settles at the administrative level without a lawsuit being filed.

You are responsible for expert witness fees and case costs. However, the attorney often advances those costs and recovers them from the proceeds of the case. If there is no recovery, the attorney will typically waive the costs.

Generally, no. Most attorneys do not require clients to pay fees or costs if there is no recovery. This is one reason why attorneys must be selective about the cases they accept, and why close communication about expectations is so important.

No. The VA will not reduce your benefit payments or refuse to provide care because you filed a claim. Generally, your VA providers will not even be aware that you are involved in a lawsuit. Filing a claim will not affect your disability payments, your eligibility for VA programs, or the treatment you receive.

Your medical treatment decisions are always up to you, but there is generally no reason to stop treating at the VA. It is not common for VA providers to be aware that a claim is pending, so there is no reason to expect different treatment. Continue receiving the care you need.

The biggest mistake is not hiring an attorney with experience in the Federal Tort Claims Act and VA medical malpractice. We regularly hear about attorneys—or veterans acting on their own—who fail to pursue claims properly, miss required procedures, or do not understand how the government evaluates and litigates these cases.

The single most important thing you can do is hire a qualified attorney who understands how the VA and the federal government work.