On December 19, 2012, the United States Court of Appeals for the Fourth Circuit issued a published opinion, Butler v. United States, No. 11-2408, distinguishing the evidence neccessary to establish a dependency and indemnity (DIC) claim before the Department of Veterans Affairs (VA) pursuant to 38 U.S.C. § 1151, versus a wrongful death and loss of consortium claim under the Federal Tort Claims Act, 28 U.S.C. § 1346. The opinion can be found at http://www.ca4.uscourts.gov/Opinions/Published/112408.P.pdf.
To understand the opinion, it is necessary to review the issue of medical malpractice in VA medical treatment facilities. A veteran who was injured as the result of medical treatment by the VA has two avenues of redress: (1) filing a claim under the Federal Tort Claims Act (commonly referred to as a “FTCA claim”); and/or (2) filing a claim with the Department of Veterans Affairs under 38 U.S.C. § 1151 (commonly referred to as a “1151 claim”). You can file an 1151 Claim and a claim under the Federal Tort Claims Act, but your VA benefits under an 1151 Claim will be reduced by a Federal Tort Claims settlement.
The rules and procedures governing each type of claim are significantly different so please do not hesitate to contact me if you have any questions at sdirector@FRE-L.com or (732) 382-6070.