On April 29, 2013, the Court of Appeals for Veterans Claims (CAVC) issued an opinion in Trafter v. Shinseki regarding the standard for standard for triggering the duty to assist in a claim under 38 U.S.C. § 1151 (VA Medical Malpractice/ Negligence). The opinion can be accessed at Trafter v. Shinseki and we have include a short overview of medical malpractice claims in Department of Veterans Affairs (VA) treatment facilities below.
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 for a free consultation at if you have any questions sdirector@FRE-L.com or (732) 382-6070.
The Federal Tort Claims Act
Claims must be filed within two years of when the injury/harm was discovered and you learned what caused it. If the VA healthcare center believes there is a problem, they may give you a SF Form 95 to complete. This form must be filed within two years of the injury.
Once the SF 95 has been filed, the VA has six months to review and investigate the claim. It may: (1) accept the claim and pay it out in full; (2) settle the claim for less; (3) reject the claim outright; or (4) do nothing.
If the VA rejects your claim or does nothing within 6 months of when it is filed, you may then file a lawsuit in Federal Court.
1151 Claims Before the VA
Under 38 U.S.C. § 1151, the veteran or his family are entitled to VA disability compensation benefits if the veteran’s disability or death resulted from: (1) Hospital care, medical or surgical treatment, or examination furnished by the VA; (2) Pursuit of a course of vocational rehabilitation under any VA-administered law, or (3) Participation in a compensated work therapy (CWT) program.
There is no statutory deadline to file an 1151 claim. The VA also does not have any special form which must be used in filing an 1151 claim, however, the claim must be in writing and must clearly indicate that 1151 benefits are being sought.
If the VA accepts your claim, compensation is payable just as if the disability or death was service-connected. The dollar amount of benefits will be the same as if the disability or death resulted from a service-connected event. If you file the claim for compensation within one year of the date of disability or death, benefits will be retroactive to the date of disability or death. Otherwise, benefits will begin on the date your 1151 Claim was received by the VA.