What is involved in an administrative claim when suing the VA?
VA malpractice lawsuits are filed against the U.S. government under a federal law called the Federal Torts Claims Act (FTCA).
File Standard Form 95
Before you (or your dependent) can sue, you have to make an administrative claim against the VA for the full amount of damages you have suffered. This claim can be made on a Standard Form 95 that is available from government agencies and U.S. Attorney offices.
You could file this on your own, but you should think carefully before doing so. You will never be able to ask for more damages than the amount you put on the form unless you can prove that the additional damages are based on evidence you couldn’t have known at the time you filed your administrative claim. For this reason, it's important to know the amount of damages you might be entitled to receive. Attorneys is this area of law are equipped to help injured vets calculate damages.
The VA's Response
Once an administrative claim is filed, the VA has 6 months to review and investigate the claim. It may then either accept the claim and pay it out in full, settle the claim for less, or reject the claim outright. If the VA rejects your claim, you may file a lawsuit in federal court to pursue the matter further. If the VA does nothing and 6 months goes by, this will be interpreted as a rejection of the claim.
Taking Your Case to Federal Court
If you wind up in federal court, you will sue under the FTCA. Overall, the FTCA allows you to file a lawsuit within 2 years of discovering your injury and what caused it. But given the 6-month time period needed to file and complete your administrative claim, you really only have a little over a year at most to begin taking action on your FTCA claim (and the federal court will dismiss your claim if you try to file it before your administrative claim period is done).