Our military personnel have the right to expect that the medical treatment they receive will be just as competent as the care civilians receive in private hospitals. When the VA hospitals, doctors, and medical staff make mistakes that cost veterans their lives or cause physical harm, the victims have the right to file medical malpractice claims against the wrongdoers.
The laws and procedures for bringing malpractice claims against the VA differ, though, from the way lawsuits are brought against private hospitals and physicians. Injured veterans can seek disability compensation claims through Title 38 Section 1151 of the United States Code. Veterans’ disability compensation generally pays for medical needs and for the inability to earn a living.
To obtain payment for medical bills, pain and suffering, and lost wages, a lawsuit must be filed under the Federal Tort Claims Act (FCTA).
How to file an FTCA claim
FTCA claims differ from 1151 claims:
- Eligibility for 1151 benefits is based on a VA rating system, which determines if you have a service-related disability.
- Benefits are based on the veteran’s ability to earn a living.
- Benefits are paid monthly.
- FTCA damages are based on the veteran’s economic loss – which is different than the ability to earn a living.
- FTCA damages include an award for pain and suffering.
- FTCA damages are paid in one lump-sum payment.
Before filing a formal FTCA medical malpractice lawsuit in federal court, the veteran (with a lawyer’s help) is required to file an administrative FTCA claim with the Veterans Administration. Our experienced Mississippi VA malpractice lawyers understand how to file these claims, the time limits that apply, and what evidence is needed. Claimants must ask for a specific dollar amount. We help veterans determine how much they should ask for. Evidence in administrative VA claims typically includes:
- Detailed medical bills
- Expected future medical costs
- A medical report from the treating doctor
- An examination by a VA medical doctor
- An employer statement
If the administrative claim is denied, the veteran has six months to file a formal FTCA claim in federal court. An experienced VA personal injury attorney then helps you prove that the doctors and other medical staff committed malpractice and that you are entitled to pain and suffering and full compensation for the physical and mental harm you suffered.
How 1151 benefits can affect your FTCA claim
Generally, 1151 benefits are paid if you are a veteran and you were hurt while obtaining medical care (or for other reasons). The claimant doesn’t need to prove fault.
A question often arises whether a veteran who suffers harm to medical mistakes at the VA hospital can get both 1151 compensation and FTCA compensation. Our Mississippi VA malpractice lawyers explain that the VA may seek to offset any 1151 payments so that a victim doesn’t get paid compensation twice.
We may be able to contest the offset – to allow disability compensation and FTCA income compensation. For example, if a veteran had a disability and the medical treatment made the disability worse, then the veteran may be entitled to both 1151 and FTCA compensation. The 1151 wage compensation is for the original disability The FTCA compensation is for the worsened medical condition.
Attorneys’ fees in FTCA claim lawsuits are limited. An attorney who helps a veteran win an administrative FTCA case can only charge up to 20% of any award. If a lawsuit is needed to obtain benefits, the maximum limit is increased to 25%.
We respect the dangers that members of the armed forces take for our safety. When veterans are hurt through medical neglect or carelessness, the attorneys at Merkel & Cocke, PA fight to get our clients the award they deserve. Our attorneys represent victims across the entire Gulf Coast, and have offices based in Clarksdale, Oxford, and Jackson. To schedule an appointment, call us now at 662.799.1633 or use our contact form.
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