Veterans Disability Info Blog

Navigating VA Medical Malpractice Claims: What You Should Know

Veterans with VA disability ratings for current conditions caused by covered injuries, illnesses, or events during qualifying active service are entitled to receive medical treatments that meet the general standard of care in the practice. If you are a veteran or military family member who visits a VA facility and experiences an injury due to negligent medical care, you could be entitled to compensation. 

In this article, we’ll explore the basics of medical malpractice and how you can pursue damages if you have experienced a long-term, life-altering injury due to negligent medical care at a VA facility. 

What is Medical Malpractice? 

Medical malpractice is defined as any act or omission by a physician during the treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient. Basically, if the level of care that a patient received was not up to par with the basic level of care they should have received for that particular treatment, their medical experience could be medical malpractice (or medical negligence).

To be eligible to file a medical malpractice claim, the following must be true:

  • A medical professional must have owed you a duty of care, meaning that you were their patient
  • The medical professional must have failed to meet their duty of care, meaning they provided medical treatment or service that was below the reasonable standard in their profession
  • That failure to meet the duty of care for that medical procedure caused injury
  • Your injury resulted in damages

These elements are the medical application of the legal concept of negligence. When a party is negligent, they are liable for the damages that result from their negligence. Negligence has four parts: (1) duty, (2) breach, (3) causation, and (4) damages. This means that a party had to have some responsibility to you, they breached that responsibility causing you injury, and that injury resulted in damages. 

When these conditions are met, you have a claim for medical malpractice. In traditional medical malpractice claims, the injured party is entitled to medical and occupational costs, and in some situations also damages for pain and suffering. When it comes to medical malpractice within the context of VA health care, the situation is more complex, and working with an experienced VA medical malpractice claim lawyer can be helpful to ensure you are going about the process in the correct manner. 

Veterans Who Receive Poor Care at VA Hospitals May Have Medical Malpractice Claims if they are within the Statute of Limitations

The quality of medical care that you receive from treatments and services at a VA hospital or medical facility, like medical care at any other hospital, must meet the industry standard of care for those treatments and services. While many veterans and their families might believe that covered care they receive at a VA facility is protected from medical malpractice claims, that is not the case.

Under the Federal Tort Claims Act (FTCA), veterans or their families who have been injured due to negligent treatment at the VA can file a claim. 

The purpose of pursuing a medical malpractice claim following an injury at a VA health care facility is to cover the following damages: 

  • Economic damages – economic losses are those that can be measured with numbers and proven with clear evidence, and generally include the cost of related medical treatments following your medical malpractice injury and the replacement of any lost wages or earnings potential that your injuries may have resulted in 
  • Non-economic damages – these are damages that cannot be measured by receipts and pay stubs and include pain and suffering, loss of consortium or companionship, and a variety of other damages that your VA disability attorney can consider the applicability of to your case 

Under the FTCA, veterans and their families are able to file medical malpractice claims when they have received care below the regular standard of care, and as a result of this negligence were injured. When the evidence that you submit with your claim proves that an action was performed, or not performed, that constituted negligence and treatment that fell below the standard of care. When this negligence results in substantial injury, the impact on your life can be long-term and life-altering. 

Common Medical Malpractice Injuries 

You may have received a medical treatment some time ago, and experienced seemingly unrelated side-effects that have negatively impacted your health. Sometimes the after-effects of a treatment are not linked to your medical treatment, or may be so substantial that you don’t think to file a claim. 

Following are some common medical malpractice injuries for veterans and their loved ones to watch out for: 

  • Misdiagnosis – when you receive an improper diagnosis, or the absence of a diagnosis when you had a condition, you have experienced misdiagnosis. An improper diagnosis can lead to the prescribing of improper and potentially harmful medications, or the completion of unnecessary procedures. The absence of a diagnosis can allow a condition to worsen without treatment, causing greater injury. 
  • Surgical errors – mistakes happen in all areas of life, and surgery is no exception. While surgeons generally do their best, mistakes can happen, and if they cause you injury, you may be entitled to compensation through a medical malpractice suit.
  • Prescription errors – receiving the wrong medication can allow a condition to go untreated, or cause additional issues with the veteran who receives the wrong medicine. Harmful interactions or side-effects that develop may entitle you to a claim, depending upon the unique facts and circumstances of your situation. 
  • Infections that are contracted at the hospital – in the same way the medical professionals generally do their best to provide quality care, medical facilities do the same, and also make mistakes. Infections such as MRSA that are contracted at a VA medical facility can have long-term consequences that lead to the need of additional medical treatments, and additional pain and suffering. 

If you or a loved one has experienced a worsening of your health following treatment at a VA hospital, our experienced VA benefits attorneys can help determine if you have a medical malpractice claim to recover on your damages. 

Medical Malpractice Damages are Recovered from Insurance Companies 

Medical malpractice damages are available by filing a medical malpractice claim with the responsible party. In med mal claims you’ll be negotiating with their medical malpractice insurance provider as all medical professionals and facilities carry this insurance as mistakes can and do happen. When you file a medical malpractice claim, you are not targeting the personal finances of your doctor or the facility, but instead negotiating a settlement with the insurance company that provides them coverage for exactly this kind of situation. 

Insurance companies do not work for the injured parties filing claims with them, they work to maximize profit. Profits are maximized by keeping costs as low as possible and revenues as high as possible. For the insurance company, their revenues are the premiums their customers pay, and their costs are the amounts covered for injured parties such as yourself. To keep costs down, insurance companies pay as little as possible on claims that they approve and deny as many claims as possible to avoid paying out altogether. 

Your VA Disability Attorney Negotiates with the Insurance Company 

One of the primary benefits that you receive from your experienced VA disability attorney is representation and negotiation. We step into your shoes, and help gather evidence then draft and file your claim, then handle all negotiations with the insurance company on your behalf afterwards. You can only collect damages that you can prove, and we have a network of medical and occupational experts who are capable of measuring the damages associated with your injuries both accurately and completely.  

It is important to understand that medical malpractice claims revolve around long-term, life-altering consequences and resulting damages. If you experienced a minor injury that will heal in time and not impact your ability to earn, you may not be entitled to any damages. Alternatively, if the medical malpractice injury has led to a long-term disability that requires additional medical treatment, and has impacted your ability to work, you may have a sizable medical malpractice claim. 

Determining the amount that you are entitled to requires a careful consideration of the evidence in your case by experienced professionals who know what to look for. Our VA benefits lawyers have decades of combined experience, and are standing by to provide you with a risk-free, cost free initial review of your VA medical care medical malpractice injury. 

How Can a VA Disability Attorney Help with My Medical Malpractice Claim? 

Being injured by a medical procedure that you expected to improve upon your health is the last thing that you expect. Recovering from these injuries can take quite a bit of time and effort, and filing a claim to recover the damages you are entitled to might not be something that you are capable of focusing on. Finding a qualified VA benefits attorney with experience representing veterans in medical malpractice cases can remove the stress of the process from your day-to-day life, and help to ensure that you receive the full coverage that you deserve. 

Expert Witnesses and Testimony Impact the Outcome of Med Mal Cases

The outcome of medical malpractice cases, referred to in the legal community as “med mal”, often revolve around the opinions of the medical experts involved in the proceedings. If you have been injured by a medical professional, you must prove that the services provided failed to meet the standard of care that is normal for that procedure. This requires a consideration of what the standard is, and a fellow medical professional is who provides this. 

You might not know where to find a medical expert who is qualified to determine if your injury was due to medical malpractice. Some qualified experts do not know how to package their opinion in a way that the courts will recognize. By working with a VA disability attorney, you have the benefit of our network of medical professionals who are highly experienced working med mal cases. We schedule appointments that meet your availability on your behalf with our experts to gather the evidence we need to ensure the best possible outcome in your case. 

Wrongful Death is Also a Covered Claim  

If you have lost a loved one due to medical malpractice at a VA facility, whether as a result of a negligent procedure or a failure to diagnose, you could be entitled to a wrongful death claim. The purpose of a wrongful death claim is to minimize the financial impact that the death of your loved one has on your household. Damages for wrongful death include the cost of any related medical care, funeral and related costs, the loss of their economic contribution to your household, and in some instances for pain and suffering. 

If your claim is approved, the loss of income and the value of household chores and other contributions are a part of the damages, from the time of the injury through the remainder of your loved one’s working life. These amounts can be substantial, and essential to helping your family adapt to life following your loss.

We are Here to Help

If you are having trouble obtaining benefits, contact us online or at 888.878.9350 to discuss your case.