Addressing Injuries Caused by the VA

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.

stockfresh_7295473_vet-concept-wooden-letterpress-type_sizeS-300x200The 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.[1] 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.”[2]  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.[3]  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.

Under the FTCA, a Veteran must first file the claim on a Standard Form 95, or equivalent,[4] directly with the pertinent regional VA chief counsel.  If the VA does not settle the matter, the Veteran must file a lawsuit in the appropriate federal court within six months after the VA mails its notice of final denial.  This FTCA claim must be filed within two years after the cause of action.  Usually, the cause of action is the negligent or wrongful act or omission.  There is no statute of limitation for claims under § 1151.  Even though § 1151 claims do not have a statute of limitations, as with claims for disability compensation, the amount of past-due-benefits could be larger the earlier the claim is filed.  The proper form to file a claim under § 1151 is VA Form 21-526EZ, which has special § 1151 specific instructions.

The standard of proof is different for claims under the FTCA and § 1151.  The FTCA requires a preponderance of the evidence, or more likely than not (51%).  § 1151 only requires at least as likely as not (50%).  Though these two claims only differ by one percentage point, the difference means that a Veteran must show more convincing evidence that supports his or her case in claims under the FTCA.  Most claims under both of these statutes require a favorable medical opinion that the Veteran’s current disability was directly caused by the negligent or wrongful act or omission.  It is usually easier to obtain an independent medical opinion that a Veteran’s current disability is at least as likely as not directly caused by an event as opposed to that it is more likely than not directly caused by the same event.  Many doctors are willing to say that a negligent or wrongful act or omission might have caused a disability, but the disability might also just as likely been caused by something completely different.  It is relatively easy, if you choose your words well, to convince these doctors that they have just expressed a likelihood of 50% and message their statements to something that might pass the threshold under § 1151.  Under the FTCA, a doctor who gives his or her medical opinion must also be willing to testify and be cross-examined under oath whereas doctors who give their opinion in § 1151 claims only have to put their opinions on paper and have them submitted to the VA.  Because of the increased evidence threshold and the necessity that the physician is willing to testify and be cross-examined, it is usually more expensive to obtain a medical expert in claims under the FTCA than in claims under § 1151.  Under the FTCA, a Veteran may also have to pay for the medical expert’s time in Court and his or her testimony during out-of-court depositions.

There may be additional federal and state conditions and requirements for filing certain claims under the FTCA, so it is highly recommended that a Veteran obtains professional legal help.  For example, state law may determine the definition of “negligence” under the FTCA while federal procedural rules as outlined in the Federal Rules of Civil Procedure may be controlling.[5]  Under § 1151, the VA also has the same duty to assist that it does under claims for service-connected disability compensation.  This duty can include the need to provide the Veteran with a C&P examination.  The VA does not have this same duty to assist for claims under the FTCA.

If successful, a claim brought under § 1151 can lead to service-connected benefits, such as monthly compensation based on the assigned rating and other associated benefits (VA healthcare, possible tax benefits, etc.). If successful, a claim brought under the FTCA usually yields a lump-sum payment with no secondary VA benefits.  The Veteran also needs to consider the fees associated with both actions.  An attorney usually cannot accept fees for filing an initial § 1151 claim for a Veteran; however, he or she might be able to receive fees for successfully appealing a denied § 1151 claim.  These fees are usually limited to a percentage (normally 20%) of the back-pay.  On the other hand, attorneys usually obtain a larger percentage (normally 33%-50%) of the lump-sum award in successful FTCA claims.  Veterans should be aware of this difference in attorney fee arrangements and realize that attorneys may have an interest in pushing one type of claim over the other because it may yield a greater fee for that attorney.

There are many times when a Veteran may want to file an FTCA claim and/or a claim under § 1151.  It is very important that the Veteran consults with an attorney and realize that each claim has its cost and its benefit.  Because of the specific case facts, rules,  and regulations, one claim may be more beneficial to the Veteran than the other; however, both claims may sometimes be filed simultaneously.

[1] 28 U.S.C. § 1346(b).

[2]  Id. at § 2671.

[3] See Loving v. Nicholson, 19 Vet. App. 96 (2005) (holding that a medical examination was not the cause of a knee injury when a Veteran’s knee was injured by a falling ceiling grate during the medical examination).

[4] See https://www.va.gov/OGC/FTCA.asp.

[5] See Vance v. United States,  90 F.3d 1145, 1148-1149 (6th Cir. 1996).

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