Military & VA Medical Malpractice in Virginia

How to File a VA Medical Malpractice Claim in Virginia

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

Step 1: Document Everything

• Medical Records: Gather all relevant treatment records from VA facilities and private providers
• Timeline of Events: Create a detailed chronology of medical care and when injuries occurred
• Witness Information: Collect names and contact details of anyone who witnessed the incident or subsequent effects
• Financial Impact: Document all medical expenses, lost wages, and other economic damages

Step 2: Obtain Medical Records

• Submit SF-180: Request complete VA medical records using Standard Form 180
• Private Records: Obtain records from any non-VA healthcare providers involved
• Response Time: Allow 20-30 days for VA records requests to be fulfilled
• Review Records: Have a medical professional review records to identify potential negligence

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

• Complete All Sections: Fill out SF-95 with detailed description of incident and exact damage amount
• Submit Supporting Documents: Include relevant medical records and evidence
• Proper Filing: Submit to VA Office of General Counsel (OGC) at ogc.torts@va.gov
• Documentation: Keep proof of submission and all correspondence
• Deadline: Must file within 2 years of incident date per 28 U.S.C. § 2401(b)

Step 4: Wait for Agency Response

• Six-Month Review: VA has 6 months to investigate and respond
• Agency Options: VA can deny claim, settle claim, or fail to respond
• Settlement Negotiations: If VA offers settlement, consider carefully with legal counsel
• No Response: After 6 months without response, you may proceed to lawsuit

Step 5: File Federal Lawsuit if Necessary

• Proper Venue: Must file in U.S. District Court (Eastern or Western District of Virginia)
• Timing: File within 6 months of denial letter or after 6-month waiting period
• Legal Counsel: Highly recommended due to complexity of federal litigation
• Jurisdiction: Case must be filed under FTCA guidelines, not state court

Virginia FTCA Claims: State Law Considerations

Statute of Limitations

• Federal Deadline: FTCA requires claims within 2 years of incident (28 U.S.C. § 2401(b))
• Discovery Rule: Claim period begins when injury reasonably should have been discovered
• Strict Enforcement: Missing deadline typically bars claim permanently
• Documentation: Keep proof of filing date and receipt

Virginia Damage Caps

• State Cap: Virginia Code § 8.01-581.15 sets medical malpractice damage cap
• Annual Increases: Cap increases $50,000 annually
• Current Limit: $2.55 million (as of July 2023)
• FTCA Application: Federal claims follow Virginia cap under 28 U.S.C. § 1346(b)

Expert Witness Requirements

• Certificate of Merit: Required before serving defendant (VA Code § 8.01-20.1)
• Expert Qualifications: Must be actively practicing in same specialty (VA Code § 8.01-581.20)
• Practice History: Expert must have practiced within year of incident
• Board Certification: Required if defendant is board-certified
• Geographic Consideration: Can be from outside Virginia but must know standard of care
• Written Report: Must detail how standard of care was breached and causation

Additional Virginia Considerations

• Comparative Negligence: Virginia follows pure contributory negligence rule
• Joint Liability: Multiple defendants can be held jointly liable
• Sovereign Immunity: FTCA waives federal immunity but follows state liability rules
• Settlement Approval: Court approval required for wrongful death settlements