On this Memorial Day 2013, we remember and honor all of the members of all of the branches of the U.S. military who sacrificed their own needs when their country needed them the most. Fortunately, most veterans returned home after their tours of duty in good shape. However, others were permanently affected by their war experiences and still struggle with their wounds, both physical and psychological. Some never returned to their families, friends, and loved ones, tendering the ultimate sacrifice – their lives in service to their country.
In an effort to serve those who served our country at its most dire times, the Department of Veteran Affairs (“VA”) was created to address the needs of returning soldiers. One of the most important and valuable benefits available to veterans is life-long medical care provided by VA medical centers and other facilities located throughout the United States, providing health care services to more than 5 million veterans each year in over 1,000 facilities.
Unfortunately, medical services provided by the VA are not immune from incidents of medical negligence and medical malpractice occurs at VA facilities for which veterans and their dependents suffer injuries and other harms, including permanent disability or death.
Acknowledging that medical negligence may cause injuries to those who receive medical services through the VA, the U.S. Congress has passed numerous statutes that set forth how and when claims of medical malpractice against the VA may be made.
In the event that an injury occurs as a result of care rendered by a VA practitioner, a veteran alleging medical malpractice may seek compensation by filing a tort claim with one of the VA’s 22 regional counsel offices by submitting a Standard Form 95 (“Claim for Damage, Injury, or Death”) to the VA within 2 years of when the medical injury was alleged to have occurred or when the veteran became aware of the injury. If the VA denies the tort claim, or if the veteran does not accept the VA’s settlement offer amount, or if the VA fails to make a final determination on the claim within 6 months of when the claim is filed, the veteran may file the tort claim in federal court.
In addition to tort claims, veterans may also file claims for monthly compensation under 38 U.S.C. § 1151 for medical injuries incurred while receiving VA medical care (these claims are processed by the Veterans Benefits Administration).
The VA’s Office of Medical-Legal Affairs (“OMLA”) receives paid tort claims information from the VA’s Office of General Counsel (“OGC”) and uses this information to initiate its review of these claims. OMLA is required to review tort claims that result in payments to veterans in order to determine whether VA practitioners provided substandard care. A group of attorneys within VA’s OGC is responsible for settling claims valued over $150,000 but may delegate such settlement authority to regional counsel offices. The VA’s OGC may also be involved in settling claims valued under $150,000, depending on the circumstances of the claim.
For each medical injury-related tort claim paid, OMLA is required to collect medical records related to the incident that prompted the claim and convene a review panel of medical practitioners to determine whether the claim was associated with substandard care. If the panel determines that a practitioner rendered substandard care, OMLA notifies the director of the VA Medical Center involved in the claim of the panel’s conclusion and the director must report the practitioner to the National Practitioner Data Bank (“NPDB”).
Unfortunately, VA regional counsel offices failed to report 16% of the total number of paid tort claims involving VA practitioners for fiscal years 2005 through 2010 to OMLA (OMLA reviewed a total of 2,109 paid medical malpractice claims for 2005 through 2010 and found that about one-half of them involved medical malpractice).
If you or a family member were injured due to VA medical malpractice, you should promptly consult with a local medical malpractice attorney to learn about your legal rights and to file a timely claim, if appropriate.
Click here to visit our website or call us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be able to help you with a claim against the VA for medical malpractice.
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