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Pursuing damages for medical error as a VA patient, P.2

Last time, we began speaking about the Federal Tort Claims Act and the general elements that must be proven in order to successfully pursue such a claim. One important point that needs to be mentioned about the FTCA is that before a claimant actually pursues litigation under the FTCA, he or she must first file a claim with the federal agency believed to be responsible for the injuries and wait for the agency to deny the claim, take no action, or offer an unsatisfactory settlement.

It is also important to mention that whether or not pursuing a FTCA medical negligence claim is worthwhile depends in large part on the likely outcome of the case in terms of damages. This is also true, of course, of ordinary medical negligence claims. As we mentioned, state law plays an important part in determining liability under FTCA medical negligence claims, and state law affects damages as well. 

Under the FTCA, a plaintiff may be able to receive noneconomic damages and economic damages, as well as future damages, but limitations on these damages are dictated by state law. For instance, some states have placed caps on noneconomic damages such as pain and suffering and loss of enjoyment of life. Noneconomic damages can be important, of course, for patients who did not suffer significant economic losses as a result of medical error. In such cases, when noneconomic damages are limited, the potential payout may not outweigh the estimated costs of pursuing litigation. So, it is important to remember that the limitations a state places on damages in medical malpractice cases will apply to FTCA medical malpractice cases, and this needs to be taken into account when determining whether to pursue a case.

Another important aspect of FTCA claims is that there is a statue of limitations which provides two different timelines for filing a claim. The first, which is for administrative claims, requires a claim to be filed within two years of the date the claim accrues. The second requires suits to be filed within six months of the final denial of the claim by the appropriate agency.

As we mentioned last time, working with an experienced advocate on these cases is important, not only to help navigate the legal and technical issues, but also to provide quality advocacy.

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