13 Things to Know About Negligence at the VA and the Federal Tort Claims Act (FTCA)

13 Things to Know About Negligence at the VA and the Federal Tort Claims Act (FTCA)

13 Things to Know About Negligence at the VA and the Federal Tort Claims Act (FTCA) 150 150 Lauren Ellerman

The Department of Veterans Affairs has been in the news a lot lately about poor medical care provided to veterans at its facilities.  If you are considering a case against the VA based on negligent care by its employees, then the Federal Tort Claims Act (FTCA) may apply.

The FTCA allows citizens to sue the federal government in certain limited circumstances.  It also has several specific requirements and limitations.  Here are 13 of them:


  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.)


  1. 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).


  1. If the government denies the claim, the plaintiff must file suit within 6 months.


  1. The proper defendant is the “United States of America,” not individual VA employees or the agency.


  1. The FTCA does not apply if a VA employee was not acting within the scope of his office or employment.


  1. The FTCA does not apply to government contractors.


  1. The case will be in federal court.


  1. The plaintiff is not entitled to a jury trial; a federal judge will decide the case.


  1. Virginia’s cap on damages in medical malpractice cases applies to Virginia-based FTCA cases.


  1. The plaintiff generally cannot recover more than what he asks for in the claim stage.


  1. Punitive damages and prejudgment interest are not available.


  1. Attorney’s fees are capped at 20% for cases resolved at the claim stage and 25% once suit is filed.


  1. If you successfully resolve the case, be prepared for the check from the government to arrive slowly.



If you have questions about the FTCA and how it may apply to you, we would love to hear from you.



About the author

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.

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