As we mentioned in our last post, VA patients do not have the same ability to pursue damages for medical errors as civilian patients. This does not mean it is impossible, only that the means of obtaining compensation is slightly different and a bit more circumscribed.
The established means of pursuing compensation for VA medical malpractice is the Federal Tort Claims Act. The Federal Tort Claims Act allows individuals harmed by government-employed health care providers to sue the federal government directly, while individual providers may not be sued under the law because of immunity.
In order to successfully pursue a claim under the FTCA, it must be proven that the patient suffered personal injury as a result of the negligence or a government employee who was acting within the scope of his or her employment, and that the government would be liable for the negligence if it was a private person. Not just any harm may is eligible, but only harm which results in money damages. The statute also requires that the law of the state where the injury occurred be used to determine negligence.
Demonstrating each of these elements is not always an easy task. For example, it isn’t always immediately clear whether the physician or health care provider was acting within the scope of his or her employment, and navigating the issue can be complicated. Also, what may be considered a negligent act in one state may not be deemed to be so in another state, so there needs to be a familiarity with the law of the appropriate jurisdiction.
Navigating FTCA claims requires expert guidance, and it is important for any VA patient who has been seriously harmed and who is considering pursuing litigation to work with an experienced advocate to ensure their case is as strong as possible.
In our next post, we’ll add a few more points about FTCA claims for medical negligence and wrap up this discussion.