by Lauren E. Davis
The Department of Veterans Affairs has been in the news a lot lately about poor medical care provided to veterans at its facilities. If a client has approached you about a potential case against the VA based on negligent care by its employees, then you will need to be familiar with the Federal Tort Claims Act (FTCA).
The FTCA creates a limited waiver of the government’s sovereign immunity for common law torts. Taking advantage of that waiver, however, requires following the FTCA’s requirements and knowing its limitations. Here are just a few of the important provisions with which to become familiar:
1. The plaintiff/claimant must submit an administrative claim (typically using “Standard Form 95”) to the Department of Veterans Affairs within 2 years of accrual of the claim. (The government must actually receive it within that time.)
2. The government has 6 months to respond to the claim before the plaintiff may file suit (unless the government formally denies the claim before then).
3. If the government denies the claim, the plaintiff must file suit within 6 months.
4. The proper defendant is the “United States of America,” not individual VA employees or the agency.
5. The FTCA does not apply if a VA employee was not acting within the scope of his office or employment.
6. The FTCA does not apply to government contractors.
7. The case will be in federal court.
8. The plaintiff is not entitled to a jury trial; a federal judge will decide the case.
9. Virginia’s cap on damages in medical malpractice cases applies.
10. The plaintiff generally cannot recover more than what he asks for in the claim stage.
11. Punitive damages and prejudgment interest are not available.
12. Attorney’s fees are capped at 20% for cases resolved at the claim stage and 25% once suit is filed.
13. If you successfully resolve the case, be prepared for the check from the government to arrive slowly.
Once you master the technical aspects of the FTCA, trying the underlying case is not much different than any other.
If you have questions about the FTCA and how it may apply to your case, we would love to hear from you.