Medical Malpractice Claims Against The VA

The U.S. Department of Veteran Affairs (“VA”) provides health care to more than 5 million veterans each year in over 1,000 facilities. As of November, 2010, the VA’s health care system had 153 VA medical centers, 773 community-based outpatient clinics, 135 nursing homes, 260 Vet Centers, 47 residential rehabilitation treatment programs, and 121 comprehensive home care programs.

Because the VA operates one of the largest health care delivery systems in the United States, the VA has 22 regional counsel offices under the umbrella of the VA’s Office of General Counsel (“OGC”)  through which victims of VA medical malpractice may file tort claims seeking compensation. The regional counsel offices are responsible for the initial investigation of the medical malpractice claims and resolving the claims through administrative review, where possible (after review, the claims may be denied or settled — any settlement over $150,000 must be approved by OGC and any settlement over $300,000 must also be approved by the U.S. Attorney General or his/her designee).

Medical malpractice claims against the VA must be made under the Federal Tort Claims Act (“FTCA”) that requires such claims to be filed by submitting a Standard Form 95 (Claim for Damage, Injury, or Death) to the VA’s local regional counsel office where the alleged medical malpractice occurred, within 2 years from the date of the medical injury or when the veteran became aware of his/her injury. (The strict requirements of the FTCA are numerous and unforgiving — the timely assistance of a medical malpractice attorney familiar and experienced with FTCA claims is essential.)

If the VA denies the medical malpractice claim or if the veteran rejects a settlement offer from the VA or if the VA fails to make a final determination on the medical malpractice claim within 6 months of the filing of the claim, then the veteran may file a medical malpractice case in federal court.

If a medical malpractice case against the VA is filed in federal court (technically, a medical malpractice case is filed against the United States, which is the named defendant), the U.S. Department of Justice will represent the interests of the United States.

If a medical malpractice claim against the VA  is resolved administratively or during litigation by making payment to a veteran, the medical information from the paid claim is supposed to be analyzed by the VA’s Office of Medical-Legal Affairs (“OMLA”) to help assess the medical care being provided to veterans by the VA.

How Successful Is The VA In Resolving Medical Malpractice Claims?

The U.S. Government Accountability Office (“GAO”) was asked my members of the U.S. Congress to examine the resolution of medical malpractice claims filed against the VA and the VA’s efforts to improve the quality of medical care provided to veterans at VA facilities. The GAO performed its review from April, 2011 through October, 2011.

On October 28, 2011, the GAO reported back to Congress regarding (1) the number of medical malpractice tort claims resolved through the VA’s administrative review process and through litigation for fiscal years 2005 through 2010, and (2) how OMLA uses the paid medical malpractice tort claims data to assess the quality of medical care provided to veterans.

The GAO found that for fiscal years 2005 through 2010, the number of medical malpractice claims filed against the VA per year rose from 1,251 to, 1,670, representing a 33% increase in medical malpractice claims filed against the VA. The GAO further found that more than 80% of the medical malpractice claims were resolved through administrative review and the remainder through litigation (with regard to the medical malpractice claims resolved through litigation, about 25% were dismissed before trial and about 62% were settled) .

The GAO’s report noted that the amounts paid through administrative review were lower than the amounts paid through litigation (for example, for fiscal year 2010, approximately $30 million was paid for 277 medical malpractice claims resolved through administrative review compared to approximately $49 million paid for 114 medical malpractice claims resolved through litigation).

The GAO further found that the average number of days it took to resolve medical malpractice claims against the VA through administrative review were “considerably less” than the average number of days it took to resolve medical malpractice claims through litigation (during fiscal year 2010, medical malpractice claims settled by VA regional counsel offices took an average of 447 days; those settled by OGC took an average of 758 days; those settled during litigation took an average of 1,023 days from the date originally filed with the VA ; and, those that were litigated to judgment took an average of over 1,600 days (10 of the judgments were in favor of the United States and 3 were in favor of the veterans)).

With regard to the GAO’s examination of the VA’s process of analyzing paid medical malpractice claims to assess the quality of medical care that the VA provides to veterans, the GAO found that the VA’s regional counsel offices failed to report 16% (386) of the total number of paid medical malpractice claims to OMLA for fiscal years 2005 through 2010, which resulted in OMLA not reviewing those paid medical malpractice claims to determine if the VA medical practitioners involved with those claims rendered substandard medical care and should have been reported to the National Practitioner Data Bank (“NPDB”) (the NPDB, which is administered by the U.S. Department of Health and Human Services, includes information on practitioners who have either been disciplined by a state medical board, professional society, or health care provider, or have been named in a medical malpractice settlement under established criteria; the NPDB is accessed by the VA and other government agencies, hospitals, and other authorized users throughout the U.S. when determining privileging and credentialing of current and new medical practitioners).

The GAO report found that OGC did not have an internal control to identify the extent to which the regional counsel offices complied with the requirement to report paid medical malpractice claims to OMLA.

For fiscal years 2005 through 2010, OMLA reviewed a total of 2,109 paid medical malpractice claims and determined that about one-half of them involved substandard medical care (medical malpractice) and identified 785 practitioners for reporting to the NPDB. Primary care was the speciality with the most findings of substandard care.


If you or a loved one suffered injuries or losses as a result of VA medical malpractice, you should consult with a medical malpractice lawyer as soon as possible to learn about your legal rights and to file a timely claim, if appropriate.

Visit our website  to be connected with medical malpractice lawyers in your state who may be able to help you with a claim against the VA or call us toll free at 800-295-3959.

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