What is Military Medical Malpractice?Military medical malpractice refers to any type of medical negligence, performed by a military authorized doctor or physician. Malpractice in general refers to a below standard of care provided by the respective professional. When the level of service provided is below the standard level of care, then it will be considered malpractice. If the treating physician was negligent in your care, which subsequently caused injury, then they will be guilty of medical malpractice. However, unlike standard medical malpractice claims, military claims are not subject to the same rules and regulations.
Suing the VA for Military Medical MalpracticeIn most situations the Federal Government in which the VA belongs to is immune from lawsuits, under a principal known as sovereign immunity. This principal allows for the government to be sued, ONLY when they give consent. However, dependents and heirs can file a lawsuit so long as it fits into the FTCA guidelines. FTCA or Federal Tort Claim Act is discussed below. There are certain elements to each claim that need to be satisfied in order to be successful.
What is the FTCA?The Federal Tort Claims Act was established in 1946 in order to compensate those who have been injured by the actions of the Federal Government. This applies anytime you have a claim against a government entity, such as the VA. There are certain guidelines you need to file in order to qualify. These guidelines include:
- Your claim must seek money damages for injuries sustained;
- Damages must result from injury or death or loss of property due to the negligence of a government employee;
- Who was furthering their duties as a government employee; and
- Where the U.S. would be held accountable had they been a private person.
Benefits of Filing a FTCA ClaimWhat are the benefits of filing a claim with the FTCA? There are benefits of filing FTCA claims. Of the benefits two are most important to recognize:
- No cap or limit on damages. Unlike most medical malpractice claims, there is a cap on damages, but with FTCA claims for medical malpractice at the VA no cap or ceiling exist, which allow you to have multimillion dollar judgments;
- There are both administrative and judicial remedies. This allows for remedies without filing a lawsuit. If the administrative parties receive and accept this case, then there is no need to file a lawsuit. But if the claim is denied, then you will have a judicial remedy. Judicial remedies are those which seek redress from the courts.
Do I Have Military Medical Malpractice Case?Determining whether you have a case requires examination of the facts, but here is checklist of what we look for before making this determination.
- Was the person at fault a government employee? Employee are defined as officers or employees of any federal agency. Compensation is not a determinative factor of employment, thus you can still be an employee even if you are not being compensated i.e. volunteer. Independent contractors are not considered employees.
- What does the state law where the accident took place consider to be negligent? This is different in each state.
- Are you injuries the cause of this negligence?
- Where did the injury take place? The area or territory must be under U.S. control. Foreign country claims are generally banned.
- How long ago did the incident happen? Under the FTCA you have 2 years to bring a claim for damages. You have 2 years to file for an administrative review and 6 months from the date of denial-if any-to file a judicial claim.
- Was the negligent employer the cause of your injuries?
Statute of Limitations in Military Medical Malpractice ClaimsStatute of limitations are timing statutes. They set a specific standard of time in which you are permitted to file a claim for damages. In military medical malpractice cases you have 2 years from the date of the incident to file a claim for administrative review. If the administrative review is not successful in securing a settlement, you will need to file a Federal Court complaint within 6 months of the denial.
- What if I did not know of the malpractice until after the 2 year period? There are many times where patients are not aware of the malpractice until years later. In such cases the courts will look at when the claimant had knowledge. When did you come to know of the malpractice issue? When were you made aware of this issue?
Who Can I Sue For Military Medical Malpractice?
Not all persons are permitted to file a lawsuit. Under the Federal Tort Claim Act or FTCA, ONLY non-active military personnel are permitted to file suit. Most claims are prevented under the Feres Doctrine -discussed below-however this doctrine is not applicable to dependents of military members.Dependents include children and spouses. These parties will NOT be barred from bringing a lawsuit for injuries sustained. A spouse will be able to bring a claim for loss of services and so forth. Below is a list of the respective rights of parties who can sue:
- Minor Claimants– if a minor, a person under the age of 18 was injured, there parents of legal guardian can bring a cause of action for their injuries. In minor cases both the parents and the minor will have independent claims for damages. Also, minors claims can be tolled or extended until the minor reaches the appropriate age.
- 3rd Party Claimants- this includes claims brought by another party on behalf of the claimant. Including executors, or decedents of the estate in the event that there is a death.
- Civilian Employees- these types of employees are NOT allowed to bring a lawsuit and will receive workers compensation benefits instead.
- Military Claimants- under the Feres Doctrine military claimants or those who are active military personnel are NOT permitted to file a claim under FTCA. Under Feres you are not permitted to file suit if (1) the injury was a result of any military related activity; (2) whether the claimant was on or off the military compound or installation at the time of the injury; and (3) the status of the employee. There are certain exceptions, speak to a military medical malpractice attorney for more information.
- Retiree Claims- retiree claims are permitted under the FTCA.
- Spouses and Dependants Claims- spouses or dependants are not barred under the FTCA and are permitted to file a lawsuit for injuries.
- Finger amputation- $369,000
- Failure to diagnose Hodgkins disease causing a reduction in life expectancy- $201,000
- Failure to perform spinal tap on child under the age of 2- $844,394
- Wrongful death claim- $1.1 million
- 20% if the case settles without filing a lawsuit. If we settle the case without filing a lawsuit then our fees will be 20% of the settlement amount awarded.
- 25% if the case is taken to trial. In situations where a reasonable settlement is not offered a lawsuit will need to be filed. In such cases, our fee will be 25% of the settlement amount awarded.