Holding the VA to account for negligent care

It was one of the county's biggest scandals of 2014 and the first headlines-A Fatal Wait: Veterans Languish and Die on a VA Hospital's Secret List-told only part of the story. The initial story alleged that at least 40 veterans had died waiting for care at the Phoenix Veterans Affairs Health Care system. The victims of an elaborate scheme that relied on a secret waiting list while an "official" list was sent to Washington. Then came a report from Sen. Tom Coburn of Oklahoma, titled "Friendly Fire: Death, Delay and Dismay at the VA," that exposed poor care being received by patients of the VA health care system. Some examples cited in the report: A Philadelphia veteran, who went in for a tooth extraction, and despite his seriously low blood pressure, was treated and sent home. He suffered a stroke on his way home and was left paralyzed. Another example involved a veteran who went in for his annual chest x-ray but the doctors missed a growing lesion on his lung that later caused his death. A South Carolina veteran was forced to wait nine months for a colonoscopy, which was ultimately too late to catch his cancer that had advanced to stage three. For anyone injured by the negligence or malpractice in a VA facility, can he or she recover damages from the government?

The application of the Federal Tort Claims Act

While the U.S. government generally enjoys sovereign immunity from damage claims, Congress has passed a number of laws which waive that immunity. The passage of the Federal Tort Claims Act is one such instance and allows victims of medical malpractice at the hands of VA caregivers to recover damages. One of the features of the FTCA that distinguishes it from other laws Congress has passed waiving immunity is that there is no dollar limitation on damage awards under the FTCA. There is, however, a requirement that a claimant must present a claim to the VA and give the agency an opportunity to settle the claim. If the VA denies the claim or the offer is deemed not sufficient, then the claimant may bring suit in a federal district court.

To qualify as a claim under the FTCA, the claimant needs to prove that a VA employee's wrongful or negligent act or omission cause the injury or death complained of under the same conditions as if a private person would be liable under the law of the place where the injury occurred. Thus, the law of the state where the alleged injury took place determines whether the injury was a result of negligence and may result in different judgments in different states. It is also important to recognize that a number of VA facilities utilize independent contractors to perform medical procedures and other care and these individuals would not be considered employees of the United States. These circumstances can provide the VA with a legal defense which must be anticipated and dealt with effectively.

Unfortunately, the U.S. Supreme Court in Feres v. United States has determined that active duty military personnel are barred from using the FTCA to recover for injuries sustained as a result of negligent conduct, holding that such injuries are "incident to service." Even here, however, the function being performed at the site of the injury may come into play.

Seeking experienced legal counsel

Anyone injured as a result of treatment in a VA health care facility should seek the legal counsel of an attorney experienced in personal injury claims against the government .