If an illness or injury is caused by VA activities, including VA healthcare, the VA offers an alternative procedure (38 U.S.C. § 1151, hereinafter referred to as “§ 1151”) to the usual remedies under the Federal Tort Claim Act (28 U.S.C. §§ 1346(b), 2671-2680, hereinafter referred to as “FTCA”). This internal procedure mirrors the VA’s disability compensation procedure and takes full advantage of the highly veteran-friendly benefits granted by statute and regulation. This article will briefly describe when both § 1151 and FTCA actions are available, what the procedures and requirements are, and what the possible remedies may be. It is important to note that both § 1151 and FTCA actions may take place simultaneously, but an award from one may have to credit an award from the other. Because many factors need to be weighed and certain deadlines have to be met, it is highly advised that a Veteran consults his or her attorney as soon as possible after receiving an illness or injury at a VA facility or due to VA care, and before deciding upon either a § 1151 or FTCA claim.
The first thing to do is to look at the two actions. FTCA is applicable any time an employee of the government commits a negligent or wrongful act or omission while acting within the scope of his office or employment. The FTCA further defines employee of the government as “includ[ing]…officers or employees of any federal agency…and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” This scope is far broader than the scope of § 1151, which is only applicable when the injury or death is caused by VA hospital care, medical or mental health treatment and examinations, and vocational rehabilitation or Compensated Work Therapy (“CWT”). If a VA maintenance employee incorrectly hung a sign in the Lobby of the VA and the sign fell, injuring a visitor, then this visitor could have a claim against the VA under the FTCA. However, if a VA Doctor amputated the wrong limb of a patient, then that patient could have a claim under both § 1151 and the FTCA.