Are you a Phoenix-area veteran who has been injured by a VA doctor or other employee of the Department of Veterans Affairs? You may be under the mistaken belief that you have no recourse, because the government can’t be sued. In fact, veterans do have the right to compensation for an injury caused by the negligence of a VA employee under the Federal Torts Claims Act (FTCA), but knowing the right way to pursue a claim again the VA is tricky. Even more so than in a private personal injury case, a patient injured by the VA needs expert counsel from the beginning to ensure the best possible outcome for their case.
If you wish to pursue compensation under the FTCA, first you must file an administrative claim with the VA Regional Council that is responsible for the Phoenix area, using Standard Form 95 (Claim for Damage, Injury, or Death). The claim must include an estimated sum of damages for your injury, which you will need to back up with supporting documentation, for example, medical bills, a statement from your physician, and information about your time away from work due to the injury. Your estimate must be as accurate as possible, because should a federal court choose to award you damages, they cannot give you more than you asked for, and there is no provision for punitive damages in the FTCA. An experienced Phoenix personal injury attorney can help you take into account all factors necessary to produce an accurate damage claim, as well as ensuring that you file all materials before the statute of limitations expires (in this case, two years from the date of the injury, or the date you first became aware there was an injury resulting from the care you received or failed to receive).
Should your administrative claim be denied, you have six months from that date to file a lawsuit. The VA may deny the claim outright, or simply not make a decision on your claim after six months, which is called a “constructive denial.” Should you fail to take action within six months of a denial, you may lose your right to seek damages in federal court. If you have not yet retained a lawyer to handle your case by that point, you must seek a personal injury attorney to pursue your case in court. You can also choose to file a lawsuit if the VA makes an unacceptable settlement offer.
FTCA cases can be challenging and go on for some time. Another route to seek compensation for an injury is to file for disability benefits under Section 1151, although the circumstances under which you can collect benefits through this method are much more narrow. However, you should be aware that an FTCA settlement may offset your disability payments—that is, the disability benefits won’t be paid until the amount of the benefits that are withheld equals the amount of the settlement you received, so that you will not be paid twice for the same injury. An experienced attorney can structure your settlement to eliminate or reduce the offset, and can also help identify situations in which the offset does not apply, such as when the negligent care you received made a previous service-related disability worse or created a new one.
If you have suffered an injury at the VA, contact the experienced attorneys at Hodes, Milman and Liebeck. They will aggressively fight for your rights and help you navigate the complex process of making your claim to ensure that you are properly compensated for your pain and suffering.