Veterans: Understanding Veterans Medical Malpractice

October 19th, 2010. By Kristine B

Anyone who has dealt with Veterans Affairs can tell you that the system can be complex and maddening, much like so many other government-operated systems. Dealing with Veterans Affairs medical malpractice can be an exercise in frustration, for many reasons. Today, Pleading Ignorance aims to shed some light on VA medical malpractice.

First, the lawyer stuff: not every attorney will take medical malpractice claims against the VA. Why? Because when you sue the VA you are suing the federal government, and such a lawsuit has its own special rules and regulations. So, if you feel you have a medical malpractice case against the VA, you have to choose an attorney carefully. (Note, when you fill out a claim form here at LawyersAndSettlements.com, the claim form goes to an attorney who specializes in that area of litigation.)

Now, you might think that only incidents that occur at VA medical centers are covered by VA medical malpractice, but that’s not necessarily true. If you were sent by a VA doctor to an off-base provider, you would still be filing a case against the VA because the medical care was provided off-base pursuant to a VA directive. So, if the VA played a role in your medical care—even if it was to send you to an off-base provider—you might still have a VA medical malpractice claim.

To be eligible, the victim—the person who suffered the medical malpractice—must have been registered with the VA system, received treatment from the VA (or had the VA direct them to off-base treatment) and suffered injury or death because of negligence in the system.

It is not only veterans who fall under the VA directive, however. Any of their dependants and spouses, if they are entitled to veterans benefits and are receiving treatment from the VA, could be eligible for a VA medical malpractice claim. Furthermore, if a veteran died because of the medical malpractice, the veteran’s family has the right to file a claim against the VA.

Finally, anything that has to do with health care falls under VA medical malpractice. This includes psychiatric care, psychological care (such as Veterans PTSD), mental health counseling and dentistry. If the negligence occurred as a result of VA health treatment, it falls under VA medical malpractice.

According to Ben Stewart, attorney at Stewart Law, P.L.L.C., a major problem with the VA is that the VA system is massively overworked. Although the doctors may be doing their best—and may be good at their jobs—there are problems with record-keeping and paperwork, which mean that no doctor has the full patient’s medical history.

Those gaps can allow misdiagnosis or lapses in medical care, regardless of how thorough the doctor is.

When it comes to medical malpractice, there are a couple of standards that must be met. The first is that the victim—or the victim’s family—must prove that if it weren’t for the negligence of someone in the VA, the victim would not have received a permanent injury (an injury that lasts six months or longer). The person who was allegedly negligent must then be compared to someone else similarly situated to determine if that person’s actions met the standard of care.

Even if there is a medical malpractice claim, there is no guarantee that the case will go to trial. Claimants must file a pre-suit claim regarding the amount of damages suffered. At that point, the government has the right to settle a claim and pay it out. The only way that a lawsuit can be filed is if benefits claimed at this point are denied.

Tags: medical malpractice, Veterans, Veterans Disability

This was posted on Tuesday, October 19th, 2010 at 8:26 am and is filed under Veterans . Feel free to respond, or trackback. Read our comments policy.