Military & VA Medical Malpractice in Delaware

How to File a VA Medical Malpractice Claim in Delaware

Filing a medical malpractice claim against a Delaware VA facility requires following specific federal procedures under the Federal Tort Claims Act (FTCA). Here are the essential steps:

Step 1: Document Everything

• Medical Records: Request complete copies of all VA medical records related to your care
• Timeline: Create a detailed chronology of events, treatments, and complications
• Provider Names: Document all healthcare providers involved in your care
• Photographs: Take pictures of visible injuries or complications if applicable
• Expenses: Keep receipts for all medical costs and related expenses

Step 2: Obtain Supporting Medical Records

• Private Records: Gather records from any non-VA providers who treated you
• Expert Review: Have a qualified medical expert review your records
• Current Treatment: Document ongoing medical care needed due to the malpractice
• Employment Impact: Collect documentation of lost wages or work capacity

Step 3: File Standard Form 95 (SF-95)

• Proper Completion: Fill out all sections of SF-95 completely and accurately
• Supporting Documents: Attach copies of medical records and evidence
• Damage Amount: Specify exact amount of damages being claimed
• Signature: Sign and date the form
• Filing Location: Submit to the VA Regional Counsel office serving Delaware

Step 4: Wait for Agency Response

• Review Period: The VA has 6 months to investigate and respond
• Communication: Respond promptly to any VA requests for additional information
• Documentation: Keep copies of all correspondence with the VA
• Status Updates: Request periodic updates on your claim's status

Step 5: Consider Federal Lawsuit

• Denial Response: If claim is denied, you have 6 months to file federal lawsuit
• No Response: After 6 months with no decision, you may file in federal court
• Legal Counsel: Consult with an FTCA attorney experienced in VA claims
• Jurisdiction: File in U.S. District Court for the District of Delaware

Delaware FTCA Claims: State Law Considerations

Statute of Limitations

• FTCA Deadline: Two years from date of injury discovery (28 U.S.C. § 2401(b))
• Federal Preemption: FTCA deadline supersedes Delaware state deadlines
• Discovery Rule: Clock starts when injury and its cause should have been discovered
• Continuing Treatment: May extend deadline under continuous treatment doctrine

Delaware Damage Caps

• Economic Damages: No cap on medical expenses, lost wages, or future care costs
• Non-Economic Damages: FTCA allows recovery for pain and suffering under Delaware state law
• Punitive Damages: Prohibited under FTCA claims
• Wrongful Death: Special damage rules apply under Delaware law

Expert Witness Requirements

• Qualification Standard: Expert must be licensed physician in same or related specialty
• Active Practice: Must have clinical experience within last 3 years
• Affidavit of Merit: Required at filing per Delaware law
• Standard of Care: Must testify specifically about VA's deviation from standard

Notice Requirements

• Administrative Claim: Must file SF-95 before any lawsuit (28 U.S.C. § 2675)
• Sum Certain: Claim must specify exact amount of damages sought
• Amendment Window: Can amend claim before agency decision or lawsuit
• Final Denial: Written denial starts 6-month window for federal lawsuit