Can You Get the VA's Root Cause Analysis After a Surgical Error?

Last Updated: August 25, 2026

When a sponge or surgical instrument is left inside a veteran after VA surgery, the VA does not just document a complication — it opens its own internal investigation into what went wrong. That investigation is protected. Federal law makes disclosing it a crime except in a handful of narrow situations, and a request from an injured veteran or their attorney is not one of them.

Can You Get the VA's Root Cause Analysis After a Surgical Error?

Generally, no. Under 38 U.S.C. § 5705, records the VA creates as part of a medical quality-assurance program are "confidential and privileged and may not be disclosed to any person or entity" except in the specific circumstances the statute lists. A Root Cause Analysis (RCA) — the investigation the VA runs after a retained surgical instrument, a wrong-site surgery, or another serious adverse event — is one of the activities VA policy expressly designates as protected under § 5705. Civil litigation, discovery, and a request from a claimant or their attorney are not among the statute's listed exceptions.

What Is a Root Cause Analysis, and Why Does the VA Protect It?

A Root Cause Analysis is the VA's structured investigation into "the basic or contributing causal factors that underlie variations in performance associated with adverse clinical events or close calls," conducted so the VA can develop corrective actions to prevent the same failure from happening again — at that facility and nationally. VHA Directive 1320, the current VA policy implementing § 5705, lists RCA among a defined set of "Quality Management" activities that generate confidential records, alongside things like Peer Review for Quality Management, Morbidity and Mortality Reviews, and — importantly — Adverse Event and Close Call Reporting, meaning the initial internal incident report that triggers the RCA is typically protected too, not just the final analysis.

The policy rationale is candor: VA clinicians and administrators are expected to speak frankly during these reviews about what actually happened, on the theory that a self-critical process only works if its participants aren't worried the transcript will surface in a lawsuit.

What Does § 5705 Actually Say the VA Can and Can't Disclose?

Section 5705(b) lists an exhaustive set of circumstances in which a quality-assurance record may be disclosed: to a federal or private organization for licensing or accreditation purposes, to a federal agency or health-care provider for participation requirements, to a criminal or civil law-enforcement agency for a lawful investigative purpose, and to health-care personnel in a medical emergency. Statistical information that doesn't identify individuals may also be released, as may information Congress requests. None of those six exceptions covers a court order, a subpoena, ordinary civil discovery, or a request from an injured patient or their lawyer.

Because § 5705(a) bars disclosure to "any person or entity" outside the subsection (b) exceptions, a Freedom of Information Act request for the same record runs into the identical statutory wall a discovery request does — the exceptions are the only doors, regardless of which door you try. And the confidentiality obligation isn't just civil: unauthorized disclosure of a protected record is a federal offense under § 5705(e), with escalating fines for repeat violations.

Is Every VA Investigation of an Adverse Event Automatically Privileged?

No, and this is the part most people — including some attorneys — get wrong. VHA Directive 1320 sets out specific criteria that must be met before a document qualifies for § 5705 protection. Two matter most:

1. The record must have been produced by or for the VA in the process of conducting a systematic health-care quality review. A document that was going to exist anyway, independent of any quality-assurance process, doesn't become privileged just because a QA team also looked at it.
2. The review must be designated, in writing, as protected under § 5705 before it begins. For a "focused review" addressing a specific incident — which is what most RCAs are — VHA policy requires an advance designation memorandum from the facility Director or a designee. The directive is explicit that a document is not confidential just because someone stamps it that way after the fact, and, in the same breath, that a document is still confidential even without a stamp if it actually meets the criteria. What controls is whether the designation was made correctly and in advance — not the label.

Whether that designation happened, and happened properly, is a factual question about the VA's own internal process — not something to assume either way.

What Records Can You Still Get?

The RCA itself and the underlying incident report are the hard cases. But § 5705 protects records "created" as part of the quality-assurance program — it does not reach backward and privilege documents that already existed as part of your ordinary medical treatment. VHA policy itself lists categories that are not confidential even when a QA review touches them, including purely statistical information that doesn't identify anyone, summary documents that describe only the general topic and timeframe of a review, and records developed during a formal Board of Investigation rather than a QA review.

Practically, that means the surgical count documentation, the operative and anesthesia records, nursing notes, and staffing schedules for the procedure at issue are part of your medical record — created as part of treating you, not as part of the VA's after-the-fact review of that treatment. Getting them runs through the ordinary medical-records process, not through a fight over § 5705. Our guide on getting complete VA medical records covers how to request that documentation and what to do when a records office says it can't locate a specific item.

Does This Mean You Can't Prove What Went Wrong?

No. Section 5705 controls who gets to see the VA's own internal self-critique — it says nothing about whether the underlying facts are provable. An instrument left in a surgical site, a documented count discrepancy, a delayed diagnosis reflected in dated lab results, or a staffing gap shown on a facility's own scheduling records are all facts that exist independent of any RCA, and none of them require the VA's privileged analysis to establish. An experienced FTCA attorney builds a case from the discoverable medical record, the objective sequence of events, and independent expert review — treating the RCA as a document that likely can't be obtained, rather than a document the case depends on.

Frequently Asked Questions

Can my attorney subpoena the VA's Root Cause Analysis? Generally, no. Section 5705(b) lists the only circumstances in which a quality-assurance record may be disclosed, and a subpoena or discovery request is not among them. A properly designated RCA is confidential regardless of the forum.

If a lawsuit can't get the RCA, will a FOIA request work instead? No. The Department of Justice's own list of Exemption 3 statutes includes 38 U.S.C. § 5705, so a FOIA request runs into the same statutory bar as civil discovery.

What if the VA never designated the RCA as confidential in writing before starting it? Then it may not qualify for § 5705 protection at all. VHA policy requires an advance written designation for a focused review like an RCA; a document that doesn't meet that and the statute's other criteria isn't automatically privileged just because it came out of an internal investigation.

Is the initial incident report protected too, or just the final RCA? VHA policy separately lists "Adverse Event and Close Call Reporting" — the internal incident report that typically triggers an RCA — as its own protected category, so the initial report is generally covered as well.

Can I still win my case without the RCA? Yes. The medical record, expert review of that record, and the objective facts of what happened are what typically prove an FTCA claim. The RCA is the VA's internal analysis of those same facts — valuable if it were available, but not a precondition to proving your case.

Does this privilege apply at military hospitals too, or only VA facilities? Section 5705 is specific to the Department of Veterans Affairs. Military treatment facilities operate under a separate but similar statute, 10 U.S.C. § 1102, which protects Department of Defense quality-assurance records on largely the same terms.

Related Articles

• Retained Surgical Instruments at VA Hospitals → — the underlying claim this records question most often comes up in
• How to Get Complete VA Medical Records → — the request process for the treatment record itself
• Standard Form 95 (SF-95): How to File an FTCA Claim → — filing your claim once you know what evidence you have
• FTCA Statute of Limitations → — the deadline that runs regardless of how long records requests take
• Can You Sue a VA Doctor Personally? The Westfall Act, Explained → — who the defendant is once your claim is filed
• Veterans Medical Malpractice & the FTCA → — our national FTCA practice overview
• Surgical Errors & Mishaps → — our surgical-error injury practice area

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.