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Yes. Veterans harmed by negligent care at a VA hospital or under VA care can sue the VA for medical malpractice, but the case goes through the Federal Tort Claims Act (FTCA), and the United States, not the VA or the doctor, is named as the defendant.
The FTCA adds steps that don’t exist in a private malpractice case, and missing any of them ends the claim regardless of how strong the underlying facts are. Working with an experienced West Palm Beach medical malpractice lawyer is how most veterans avoid having a claim rejected on a technicality.
How is suing the VA different from suing a private hospital?
You have to file an administrative claim with the VA before you can file a lawsuit in court. Most people start a claim against the VA with Standard Form 95, though the VA says the form isn’t mandatory as long as your written claim includes a detailed allegation, a sum certain (specific dollar amount), and your signature or your attorney’s.
From there, the differences stack up:
- Two years to file the claim. The clock starts when you knew or should have known about the injury and its cause, not necessarily the date of the treatment. The Supreme Court set that standard in United States v. Kubrick.
- Six months for the VA to respond. If the VA doesn’t decide within six months, you can treat the silence as a denial and go to court.
- Six months to sue after a denial. This is the deadline that ends the most claims. Once the VA mails a written denial, you have six months to file suit, and it isn’t extended.
- You can’t sue more than you asked for. The sum certain on your claim caps your lawsuit, with narrow exceptions for newly discovered evidence.
- You can’t sue the individual provider. Federal law makes the FTCA claim against the United States the only remedy, so the doctor or nurse isn’t a defendant.
- No jury. A federal judge decides an FTCA case from the bench.
- No punitive damages. Only compensatory damages are available.
- Capped attorney’s fees. Federal law caps fees at 20% of an administrative settlement and 25% of a court judgment or settlement, below the typical contingency percentage in a private case.
One thing that doesn’t change is that the state law where the treatment happened still supplies the standard of care and any damages limits. VA malpractice is a federal process applying Florida law to medical care delivered in Florida.
What kinds of VA medical mistakes lead to valid claims?
The mistakes are the same ones that support a claim against a private provider:
- Misdiagnosis or delayed diagnosis
- Surgical errors
- Medication and pharmacy errors
- Anesthesia complications
- Failure to treat or monitor
Can you get VA disability benefits for the same injury instead of suing?
Yes. A Section 1151 claim asks the VA to compensate you for an additional disability caused by VA care, and it’s handled as a benefits claim rather than a lawsuit. If it’s granted, the VA assigns a disability rating for the new condition or for the worsening of an existing one.
The two paths interact, and this is where veterans get surprised. If you win or settle an FTCA case for the same injury, federal law requires the VA to withhold your Section 1151 benefits until the withheld amount equals what you received in the lawsuit. You aren’t choosing between them so much as choosing the order and understanding the offset, which is worth talking through with an attorney before you file either one.
Does it matter if you were active duty when the malpractice happened?
Yes, and this is the most misunderstood part. Under the Feres doctrine, active-duty service members generally cannot sue the government for injuries connected to their service, including medical malpractice at a military hospital.
Congress created a narrow workaround in the 2020 National Defense Authorization Act, but it isn’t a lawsuit. Active-duty members can file an administrative claim with the Department of Defense for malpractice at a covered military treatment facility, within two years, and the DoD decides it internally. That regulation states that the decision is “final and conclusive and not subject to review in any court.”
That process is separate from the VA. Care you received as a veteran after separation runs through the FTCA; care you received on active duty at a military facility runs through the DoD claim process.
Talk to a lawyer about a VA malpractice claim
The Florida attorneys at Lytal, Reiter, Smith, Ivey & Fronrath are admitted to practice in federal court and handle FTCA claims and Section 1151 filings. There’s no fee to talk with us, and you pay no attorney’s fees unless compensation is recovered. Call us at (561) 655-1990 or contact us online for a free consultation.