Can You Sue a VA Doctor Personally? The Westfall Act, Explained

Last Updated: August 18, 2026

A veteran harmed by a specific VA doctor's decision almost always wants to sue that doctor — by name. It feels personal because it is personal. But under federal law, that is usually not how a VA malpractice case works.

Can You Sue a VA Doctor or Nurse Personally for Malpractice?

Generally, no. When a VA physician, nurse, surgeon, or other federal employee causes harm while acting within the scope of their job, federal law substitutes the United States as the defendant in place of that individual. This rule comes from 28 U.S.C. § 2679(b)(1), part of the Federal Tort Claims Act (FTCA), and it applies whether you try to sue the provider in state court or federal court. Your case becomes United States v. — not a lawsuit against the doctor personally.

What Is the Westfall Act, and Why Does It Exist?

The rule that the government — not the individual employee — is the proper defendant is commonly called the Westfall Act, codified at 28 U.S.C. § 2679. Congress passed it in 1988 in direct response to the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988), which had held that a federal employee was only immune from a personal-injury lawsuit if the conduct was both within the scope of employment and "discretionary" in nature — a standard that left federal workers exposed to personal liability for routine, non-discretionary acts.

Congress removed that gap. Under § 2679(b)(1), once conduct is within the scope of a federal employee's office or employment, the FTCA remedy against the United States is "exclusive of any other civil action or proceeding for money damages" against that employee. In plain terms: if a VA doctor's negligence happened while they were doing their job, you cannot collect from the doctor individually — your only path to compensation is an FTCA claim against the government.

How the Government Takes Over Your Case: Certification and Removal

If you (or your attorney) name an individual VA employee as a defendant — in state or federal court — the process that follows is largely automatic and is not something you control:

1. The U.S. Attorney General (acting through the local U.S. Attorney's office) certifies scope of employment. Under 28 U.S.C. § 2679(d)(1)–(2), if the Attorney General certifies that the employee was acting within the scope of their office or employment at the time of the incident, that certification triggers removal of the case to federal court and substitution of the United States as the defendant.
2. The United States is substituted as the defendant, and the case proceeds — from that point forward — as an FTCA claim rather than a personal-injury suit against the employee.
3. The Attorney General has an independent duty to defend any suit brought against a federal employee for conduct arising from their federal duties, under 28 U.S.C. § 2679(c).

The Supreme Court confirmed how this removal mechanism works in Osborn v. Haley, 549 U.S. 225 (2007), holding that once the government certifies scope of employment and removes the case, that removal decision is not sent back to state court even if a federal court later disagrees with the certification — the case stays in federal court and proceeds under the FTCA.

What If You Never Filed an SF-95 Before Suing the Provider?

This is the trap that catches unrepresented claimants and out-of-state counsel most often. The FTCA requires that an administrative claim (ordinarily an SF-95) be presented to the responsible federal agency before a lawsuit is filed — that is the exhaustion requirement of 28 U.S.C. § 2675(a). If you sue an individual VA employee in state court without ever having presented an SF-95, and the case is later certified and removed under the Westfall Act, the resulting FTCA action can be dismissed for failure to exhaust administrative remedies.

Congress built in one narrow escape hatch. Under 28 U.S.C. § 2679(d)(5), when a removed action is dismissed for failure to first present a claim under § 2675(a), the claim is nonetheless deemed timely presented under the FTCA's statute of limitations, 28 U.S.C. § 2401(b), if:

• the original state-court lawsuit was itself timely filed, and
• the claimant presents an administrative claim to the appropriate federal agency within 60 days after the dismissal.

Miss that 60-day window, and there is generally no second chance — the claim is time-barred under § 2401(b) regardless of when the underlying injury occurred. Our FTCA statute of limitations guide covers how the two-year presentment deadline and the discovery rule work in the more common scenario where an SF-95 is filed first.

Can You Fight the Government's Certification?

Yes, in two directions. If the Attorney General does certify scope of employment and you believe the employee was actually acting outside the scope of their job (for example, conduct unrelated to their official VA duties), you can challenge that certification in federal court, though the burden and procedure for doing so are demanding.

The reverse scenario also has a remedy. If the Attorney General refuses to certify that the employee was acting within the scope of employment — which would leave the employee personally exposed — 28 U.S.C. § 2679(d)(3) allows the employee to petition the court, at any time before trial, to find and certify scope of employment independently. Either way, "who is the defendant" can itself become a contested, litigated question — it is not always as automatic as the certification process suggests.

Does the Westfall Act Apply to VA Contractors Too?

No — and this distinction matters more at VA facilities than almost anywhere else in federal healthcare, because the VA relies heavily on contracted physicians, especially for Compensation & Pension exams and specialty referrals. The Westfall Act's substitution rule applies to federal employees. Under 28 U.S.C. § 2671 and the Supreme Court's decisions in Logue v. United States, 412 U.S. 521 (1973), and United States v. Orleans, 425 U.S. 807 (1976), the FTCA generally does not make the government liable — and does not substitute the government as defendant — for the negligence of an independent contractor, even one working on VA premises or paid with VA funds.

If the provider who harmed you was a contracted physician rather than a VA employee, the Westfall Act substitution described in this article may not apply at all, and a different legal analysis governs whether you have any federal remedy. We cover how that employee-versus-contractor line gets drawn — and why it has real deadline consequences — in our Brian Tally Act guide and our guide to when a C&P exam signals a possible malpractice claim.

Does Any of This Change Whether You Have a Case?

No. The Westfall Act is a defendant-substitution rule — it decides who you sue, not whether your claim is valid. You still have to prove the underlying elements of a malpractice claim, you still have to exhaust the FTCA's administrative process, and if you were injured incident to active-duty military service, the Feres doctrine (Feres v. United States, 340 U.S. 135 (1950)) may bar the claim entirely regardless of who the named defendant is. Our Feres Doctrine explainer covers that separate question in detail.

What the Westfall Act does mean, practically: expect the case caption to read "United States" rather than the treating provider's name, expect the U.S. Attorney's office — not the individual doctor's malpractice insurer — to control the defense, and expect the FTCA's own procedural rules (bench trial, no jury, a judgment paid from the U.S. Treasury) to govern the case from that point forward.

Frequently Asked Questions

Can I sue a VA doctor in their individual capacity if I only want an apology or accountability, not the government's money? No. Once the Attorney General certifies scope of employment under 28 U.S.C. § 2679(b)(1), the FTCA remedy against the United States is exclusive — a separate personal suit against the employee for the same conduct is precluded, regardless of what the claimant is seeking.

Does the Westfall Act apply to injuries at military treatment facilities, not just VA hospitals? Yes. Section 2679(b)(1) applies to "any employee of the Government," which includes military treatment facility staff who are federal employees. Whether the claim itself is viable is a separate question — active-duty patients face the Feres doctrine bar described above.

What if the VA won't tell me whether my provider was an employee or a contractor? That determination is often disputed, and VA and DoD facilities frequently mix employees and contractors on the same care team. Our guide on getting complete VA medical records covers how to document a provider's status as part of building your claim.

Is the 60-day savings window under § 2679(d)(5) automatic? No. It only applies if the original lawsuit against the individual employee was itself timely filed, and the administrative claim must be presented to the correct federal agency within 60 days of the dismissal. Missing either condition generally forfeits the claim.

Do I need a lawyer to deal with a Westfall Act certification and removal? The certification and removal process moves quickly and on a schedule you do not control. An attorney experienced in FTCA practice can confirm whether an SF-95 has been properly presented, calculate the § 2679(d)(5) deadline if it applies, and make sure the case is not lost on a technicality unrelated to the merits of what happened to you.

Related Articles

• Standard Form 95 (SF-95): How to File an FTCA Claim → — the administrative claim you must present before (or within 60 days after) a Westfall Act removal
• FTCA Statute of Limitations → — the two-year presentment deadline referenced in the § 2679(d)(5) savings clause
• The Brian Tally Act Explained → — why contractor-versus-employee status determines whether the Westfall Act applies at all
• Your C&P Exam Went Wrong — Could It Signal Malpractice? → — another context where the employee/contractor line controls the outcome
• Can You Sue a VA Hospital? → — the broader FTCA process this defendant-substitution rule fits into
• The Feres Doctrine Explained → — the separate active-duty bar that can apply regardless of who the named defendant is
• Veterans Medical Malpractice & the FTCA → — our national FTCA practice overview

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only. Readers should contact their attorney to obtain advice concerning any legal matter.

The author, EJ Archuleta, J.D., is a 13-year federal practice lawyer. He is licensed to practice law in the courts of the State of Texas, is a member of the State Bar of Texas, and is admitted to the United States District Court for the Western District of Texas. He has helped hundreds of military service members, veterans, and their families receive compensation for injuries and wrongful death caused by the Department of Veterans Affairs.