The Federal Tort Claims Act and Medical Malpractice Claims by Veterans

Law book on medical malpractice next to Lady JusticeUnfortunately, the U.S. Department of Veterans Affairs (VA), has been plagued with a reputation for providing poor-quality health care for a long time now. Although the situation has improved quite a bit in recent years, many people are still suffering from medical malpractice injuries that they sustained years ago. Something needs to be done.

If you were injured by a VA hospital employee, you have two possible alternatives. One, you can file a Section 1151 disability claim, or two, you can file a medical malpractice lawsuit. In many circumstances, you can only file a medical malpractice claim, but in other circumstances, you can file either or both. The Federal Tort Claims Act (FTCA) sets forth restrictions and governs lawsuits that are filed against the VA.

Section 1151 Disability Claims

A Section 1151 claim is viable if you suffered an injury from a VA hospital, outpatient clinic, medical examination, or surgery. In most cases, Section 1151 disability claims are much simpler to file and win compared to medical malpractice claims. Unlike medical malpractice awards, Section 1151 benefits are paid monthly. It is sometimes possible to win both a Section 1151 claim and a medical malpractice claim and offset them.

Medical Malpractice Claims: How They Work

A medical malpractice claim can be filed against any health care provider, not just the VA. To win, you must prove:

  • adoctor-patient relationship exists;
  • the defendant failed to meet the appropriate standard of care; and
  • the defendant’s failure to meet the standard of care caused you harm.

If you win a medical malpractice claim, either in court or at the negotiating table, the award will probably be paid to you in a lump sum rather than monthly installments. You can demand compensation for medical expenses, lost earnings, and incidental expenses, among other items. Psychological losses, such as pain and suffering, are also likely to be a major component of your recovery.

Wrongful Death Claims

Sometimes the victims of medical malpractice die as a result of their injury or illness. Depending on state law, close family members or the estate executor may file a wrongful death claim. A court may award:

  • funeral and burial expenses;
  • medical bills;
  • pain and suffering;
  • loss of support and services by the victim’s family;
  • lost inheritance by estate beneficiaries; and
  • other damages.

Damages vary according to state law. Some states allow family members to sue for their own grief. New York, by contrast, does not allow the recovery of damages for grief.

The Federal Tort Claims Act

Since the VA is a branch of the U.S. federal government, they must pay any compensation out of taxpayer-provided funds. In response to the special considerations posed by claims against the federal government, Congress passed the Federal Tort Claims Act (FTCA). The FTCA gives you a much broader basis to file a claim against the VA than Section 1151 (disability).

The FTCA gives you the right to sue for an injury caused by negligence, including medical negligence, as long as the same conduct would justify a personal injury claim under state law.  Since the VA is a branch of the U.S. federal government, if your claim makes it to court, you must file your claim with a U.S. District Court, not a state court.

Federal Substantive Law vs. State Procedural Law

One of the most complex and confusing aspects of medical malpractice claims under the FTCA is that federal law applies to the legal procedure, while state law applies to the substantive aspects of the claim. The Federal Rules of Civil Procedure would govern a claim arising in New York, for example, but New York substantive law would apply. Even legal scholars, however, sometimes argue whether a particular statute is substantive or procedural in nature.

State substantive law might decisively affect the outcome of a claim. A California claim, for example, would be subject to California’s $250,000 cap on noneconomic damages (pain and suffering, etc.). Additionally, state substantive law would also govern who can file a wrongful death lawsuit.

Filing an Administrative Claim

Practically, your first step in resolving your claim is normally to seek a private settlement. If settlement negotiations fail or take too long, you can file a formal medical malpractice claim under the FTCA.

In pursuing a formal claim, the first step is to file an administrative claim with the VA. To do so, complete Standard Form 95, Claim for Damage, Injury, or Death, and have witnesses sign it along with you. The statute of limitations period for filing this form, with very narrow exceptions, expires two years after the date that the harm occurred.

File this form with the VA Regional Counsel that serves the region where your injury took place.

Standard Form 95 provides space for you to identify your injury, say why you believe the defendant was negligent or otherwise at fault, and state the amount of damages you are seeking. Talk to your lawyer before you state the amount of damages that you want because this amount will serve as a maximum throughout your claim processing.

Supporting documentation
Include the following supporting documentation with Standard Form 95:

  • medical bills (in detail);
  • future anticipated medical expenses;
  • a statement from your doctor;
  • a VA medical exam report; and
  • a statement from your employer calculating how much work time your injury will cause you to lose.

Filing a Lawsuit in Federal Court

You cannot take your claim to court until the VA denies it. Once the VA denies your administrative VA claim, however, you have six months to file a lawsuit. You don’t have to wait until the VA issues a formal denial. If the VA has not replied to your administrative claim within six months, you can file a lawsuit. If you miss this six-month filing deadline, your claim will probably lose all of its value immediately.


Several restrictions limit your ability to claim damages against the VA. Although some of them may be counterintuitive, you need to take them into account.

Scope of Employment

You may only sue the VA for damages for the wrongful behavior of an employee “acting within the scope of their employment”. An employee might act outside the scope of employment even while “on the clock.” Ultimately, this is a judgment call that you should present to an experienced attorney.

No Punitive Damages

You cannot obtain punitive damages against a VA hospital. Courts impose punitive damages in order to punish the defendant for outrageous behavior rather than to compensate the victim for their losses. Therefore, you cannot receive punitive damages under the FTCA even if your doctor committed gross negligence by performing surgery on you while intoxicated, for instance.

Restricted damages amounts

You can only receive the amount of damages that you would receive if the defendant was a private party.

One bite at the apple

You do not get more than one bite at the apple. In other words, once the other party pays your claim, you cannot come back and ask for more money later.

Independent contractors are excluded

You cannot file a claim for money damages against an independent contractor. At many hospitals, doctors are independent contractors. That is good news for your claim, however, because it means you can proceed to file an ordinary medical malpractice lawsuit against that doctor, without worrying about FTCA restrictions.


In some cases, it is possible to file both a Section 1151 disability claim and an FTCA claim for the same injury. If you win them both, however, you will not receive double compensation. Instead, the VA will hold off on paying your monthly disability payments until the total amount deferred equals the amount of your FTCA award. If this never happens, the VA will not pay you any Section 2251 disability benefits.

How to Avoid the Offset

If you settle your FTCA claim out of court, you will sign a settlement agreement. Your legal practitioner can draft the settlement agreement in a manner that eliminates or minimizes the amount of any offset. You can do this by drafting an agreement in a clever manner that the defendant is unlikely to object to.

Another way to avoid the offset is to take advantage of the monthly payment structure of disability benefits vs. the lump-sum nature of an FTCA award. The VA will not offset your monthly disability payments until your FTCA award becomes final. One way of minimizing your total offset is to file for disability as early as possible.

VA Medical Malpractice Claims Are Too Complex to Handle on Your Own

If a Veterans Administration hospital has committed medical malpractice against you, you need to know exactly how to best seek compensation. You might sacrifice a lot, for example, by settling for disability payments. On the other hand, proving medical malpractice in order to obtain full compensation involves navigating many potential pitfalls and complexities.

Don’t worry that you can’t afford us—you only pay us if we win. Contact E. Stewart Jones Hacker Murphy through our online contact page or by telephone at 518-730-7270 to schedule a free initial consultation. Our offices are located in the state of New York at Albany, Colonie, Latham, Saratoga, and Troy.