Are there different rules for VA malpractice claims?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Medical malpractice claims follow very different rules than claims filed against private hospitals. Since Veteran’s Administration (VA) hospitals are part of the United States government, traditional rules don’t apply. Attorney Jeff Milman explains. “You are not permitted to air your grievances in front of a jury in VA cases. Since you are suing the United States of America or bringing a claim against them, you have to play by their rules. So whether you are in Nevada or in Maryland or in California, you are filing a Federal Case in the Federal Court system.

All of the federal courts operate pretty much by the same rules, meaning the timing requirements to file this and how the discovery process proceeds. However, each state has different laws pertaining to medical negligence. For example, if you are in California, there’s a cap on damages where there may not be one in a different state.”

Federal Follows State

Even though you are filing a VA case in federal court, the court will follow state law. Unfortunately, some states, like California, have caps on damages. Milman continues, “Since each federal court takes the substantive law of the case from each state, if you’re in California, the negligence happens here and you are in front of a federal judge whose courtroom is in California and they’re required to apply state laws. California has had a very unfair law called MICRA (Medical Injury Compensation Reform Act) on the books since 1975.

What that does is limit somebody’s pain and suffering to $250,000 total and it’s never been increased since 1975. There are other avenues of recovery, but it’s very unfair to tell someone who is brain damaged or one who suffered the death of a family member that the most they can ever get for non-economic damages is $250,000. Whereas, for example, you wouldn’t be dealing with that if you had a car accident.”

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The VA Claim Process Is Time-Specific

The VA claim process is also time specific. Milman explains, “Initially, within a two year time span from the date you knew or should have known of the medical negligence, you must file a rather specific claim with the Veterans Administration under the Federal Tort Claims Act. The VA then assigns its staff attorney to evaluate the case. Some cases settle during that stage, and some do not.

If there has been no outright denial after a six month time frame, then the veteran – with their counsel – is permitted to file a lawsuit in the federal court. At that point, the file is assigned to an assistant United States Assistant Attorney – most of whom are very good at litigation.”

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