Why the Same VA Medical Error Can Mean Very Different Compensation, Depending on the State

Last Updated: September 1, 2026

Two veterans die from what a jury would recognize as the same kind of VA hospital error — a missed sepsis diagnosis, say, or a delayed transfer to a higher level of care. One family lives near a VA medical center in Florida. The other lives near one in California. Under the Federal Tort Claims Act, those two families are not necessarily working with the same rules for what they can recover. The law that decides how much a wrongful death claim is worth is not federal law at all — it is the law of whichever state the negligence happened in, and that single rule has produced dramatically different outcomes in cases involving military and VA medical care.

Does It Matter Which State a VA Malpractice Case Happened In?

Yes. The Federal Tort Claims Act does not create its own damages rules. Under 28 U.S.C. § 1346(b)(1), the United States is liable only "in accordance with the law of the place where the act or omission occurred" — the same law a private person would face in that state. That means the state where the negligent VA or military medical care took place supplies the wrongful death statute, the damages rules, and any damages cap that applies to the claim. Two families harmed by materially identical VA negligence, in different states, can face two very different ceilings on what they can recover.

The FTCA's State-Law Rule, and Why Congress Wrote It That Way

The FTCA is a limited waiver of the federal government's sovereign immunity — it lets the government be sued, but only on terms Congress set. One of those terms is that the government is liable "in the same manner and to the same extent as a private individual under like circumstances," per 28 U.S.C. § 2674, and the substantive law that defines what a private individual would owe is borrowed wholesale from the state where the negligent act or omission occurred. Congress did not write a federal wrongful death statute for FTCA cases. Instead, it tied liability to whatever wrongful death law already existed in each state — who can sue, what they can recover, and any limits the state legislature or courts have placed on that recovery.

It's Not Just the State's Rules — It's the State's Rules for Deciding Which State's Rules Apply

The phrase "law of the place where the act or omission occurred" sounds like it points to a single, obvious answer. It is more complicated than that, and the U.S. Supreme Court settled why in Richards v. United States, 369 U.S. 1 (1962).

Richards arose from a commercial plane crash. The negligent conduct — allegedly defective maintenance work — happened in Oklahoma, but the crash and the resulting deaths happened in Missouri. The claimants argued that "law of the place" should mean only Oklahoma's own internal tort law. The Supreme Court disagreed, holding that the FTCA requires courts to apply the whole law of the state where the act or omission occurred — including that state's own conflict-of-laws (choice-of-law) rules. Oklahoma's conflict-of-laws rule at the time was the traditional lex loci delicti approach, which pointed to the law of the place of injury — Missouri — rather than the place of the negligent conduct. Missouri's wrongful death statute at the time capped total recovery, and that cap governed the case even though the maintenance failure occurred in Oklahoma.

Richards matters directly to VA and military malpractice cases because veteran care is not always confined to one facility or one state. A veteran may be diagnosed at one VA medical center, transferred to another facility — sometimes a non-VA community-care hospital — in a different state, and experience the fatal harm somewhere else entirely. Which state's substantive law applies is not always the state where the veteran happened to die; it depends on where courts say the negligent act or omission occurred, filtered through that state's own choice-of-law doctrine. Identifying the correct state — and that state's own rule for picking a state — is a threshold legal question in any multi-facility VA wrongful death case, and it can change the value of the claim before a single settlement number is ever discussed.

A Real Case Where This Played Out: Estate of McCall v. United States

The clearest illustration of this rule in a military medical setting is not hypothetical — it is a published federal wrongful death case that went to the Florida Supreme Court.

In Estate of McCall v. United States, No. SC11-1148 (Fla. Mar. 13, 2014), Michelle McCall, an Air Force dependent, died from severe blood loss after childbirth following prenatal and delivery care at an Air Force clinic and a partnering hospital in Florida. Her family brought an FTCA wrongful death action against the United States. The federal district court found the United States liable and determined the family's economic damages at $980,462.40, with noneconomic damages totaling $2 million — $750,000 each for Ms. McCall's two parents and $500,000 for her surviving son.

Because the negligence occurred in Florida, Florida's wrongful death law controlled — including, at the time, Florida's statutory cap on wrongful death noneconomic damages in medical malpractice cases, former Fla. Stat. § 766.118(2). Applying that cap, the district court cut the family's $2 million noneconomic damages award roughly in half, to $1 million, splitting it proportionally among the three claimants. As the Florida Supreme Court later put it, under that cap "the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses" — a single surviving child would have recovered his full $500,000, but because two parents also had valid claims, every claimant's recovery was reduced.

On certified questions from the Eleventh Circuit, the Florida Supreme Court held that Florida's wrongful death noneconomic damages cap violated the Equal Protection Clause of the Florida Constitution and struck it down. Three years later, in North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017), the same court extended that reasoning to strike the parallel cap that applied to personal injury (non-death) medical malpractice claims. The cap language itself still appears in Fla. Stat. § 766.118 — the Legislature has not repealed it — but Florida courts do not enforce it after McCall and Kalitan.

McCall is a useful case precisely because it shows the mechanism working end to end in a real military-family case: a federal claim, resolved entirely under state substantive law, where the state's own courts later changed what that law required. The figures above come from that specific, published decision — they describe what happened in that case, not a prediction or a guarantee about the outcome of any other case.

How Wrongful Death Damages Rules Actually Differ by State

Because the FTCA borrows state law, the rules that can apply to a VA wrongful death claim vary in several concrete ways depending on where the negligence occurred:

Some states cap noneconomic damages in health care cases, and enforce the cap. California's Medical Injury Compensation Reform Act (MICRA), codified at Cal. Civ. Code § 3333.2, currently caps noneconomic damages in a professional negligence claim against a health care provider at $500,000 for a wrongful death claim (as opposed to $350,000 for a non-death claim), effective January 1, 2023 under 2022's Assembly Bill 35. Those caps are scheduled to rise gradually — the wrongful death cap by $50,000 each year until it reaches $1,000,000 in 2033, after which both caps adjust annually for inflation. California's caps remain in force; nothing in California law has invalidated them the way Florida's courts invalidated Florida's.

Some states had a similar cap and had their own courts strike it down. As described above, Florida no longer enforces its statutory wrongful death noneconomic damages cap for medical malpractice claims, following McCall and Kalitan — even though the cap remains printed in the Florida Statutes.

Who is allowed to bring the claim, and what categories of loss they can recover, also varies by state — separate from any dollar cap. Some states allow parents of an adult child to bring a wrongful death claim only in narrow circumstances; others do not permit it at all. Some states toll (pause) the filing clock for a minor child's individual claim; others treat the minor's claim on the same clock as the estate's. None of this is uniform, and an FTCA claim adopts whichever version of these rules belongs to the state where the negligent act or omission occurred.

The practical result: the same category of VA medical error, involving comparable injuries and comparable economic losses, can be worth substantially different amounts purely because of a fact that has nothing to do with the medicine — which state's VA facility the negligence happened at, and (per Richards) which state's law that state's own conflict-of-laws rule ultimately points to.

What This Means If You're Considering a VA Wrongful Death Claim

1. Identify every facility involved, not just the last one. If your family member was treated at more than one facility — including a transfer to a non-VA Community Care hospital — before their death, each location is potentially relevant to which state's law applies.
2. Do not assume the state of death controls. As Richards illustrates, the operative question is where the negligent act or omission occurred, filtered through that state's own choice-of-law rule — which can point to a different state than where the harm was ultimately suffered.
3. Understand that a damages cap, if one applies, affects how the SF-95 sum certain should be calculated. Setting that number requires knowing which state's damages rules will govern the claim before it is ever filed.
4. The Feres doctrine is a separate question and does not change any of this analysis. Feres bars certain claims by active-duty servicemembers; it does not apply to a veteran's care as a civilian VA patient, and it has no bearing on which state's wrongful death law governs an otherwise-viable claim. For the full analysis of who can file and how the two-year deadline works, see our complete guide to VA wrongful death claims.
5. File within the FTCA's two-year window regardless of which state's substantive law ultimately applies. The FTCA statute of limitations under 28 U.S.C. § 2401(b) is a federal deadline that applies no matter which state supplies the wrongful death rules.

Related Articles

• Can Family Members Sue the VA for a Veteran's Wrongful Death? → — the complete guide to who can file, what damages are available, and the two-year deadline
• Federal Tort Claims Act Overview → — the complete legal framework
• FTCA Statute of Limitations → — the two-year deadline and the discovery rule
• How to File Standard Form 95 → — the sum-certain requirement this analysis feeds into
• Feres Doctrine Explained → — why Feres does not bar family wrongful death claims
• FTCA Wrongful Death Lawyers → — our wrongful death practice
• Military & VA Medical Malpractice in Florida →
• Military & VA Medical Malpractice in California →

Frequently Asked Questions

Does the state where a veteran received VA care affect how much a wrongful death claim is worth?

Yes. Under 28 U.S.C. § 1346(b)(1), the Federal Tort Claims Act does not have its own wrongful death damages rules — it borrows the substantive law of the state where the negligent act or omission occurred, including any damages cap that state applies to medical malpractice wrongful death claims. Two cases involving comparable VA negligence can have very different maximum recoveries depending on which state's law applies.

Is it always the state where the veteran died that controls?

Not necessarily. The Supreme Court held in Richards v. United States, 369 U.S. 1 (1962), that federal courts must apply the whole law of the state where the negligent act or omission occurred — including that state's own choice-of-law rules — which can point to the law of a different state than where the injury or death ultimately occurred. Veterans are often treated across multiple facilities, sometimes in different states, which makes this a genuinely contested question in some cases rather than an automatic one.

Did a court actually apply a damages cap to a military family's wrongful death claim?

Yes. In Estate of McCall v. United States (Fla. 2014), a federal district court found $2 million in noneconomic damages owed to the family of an Air Force dependent who died from VA-related negligence at an Air Force clinic, but reduced that amount to $1 million under Florida's then-existing statutory cap because the negligence occurred in Florida. The Florida Supreme Court later held that specific cap unconstitutional under the Florida Constitution, and does not enforce it today — but the case shows the state-law-borrowing mechanism operating in a real FTCA wrongful death claim.

Does the Feres doctrine affect which state's wrongful death law applies?

No. The Feres doctrine, from Feres v. United States, 340 U.S. 135 (1950), addresses a separate question — whether an active-duty servicemember's claim is barred at all. It does not apply to a veteran's care as a civilian VA patient, and it has no bearing on the choice-of-law analysis described here. A claim can clear the Feres question entirely and still be governed by a state law that significantly limits or does not limit its value.

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.