What damages are available to injured vets?
UPDATED: June 18, 2012
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The damages that are available to injured veterans in Veterans’ Administration (VA) medical malpractice claims are similar to those available in lawsuits filed against private health providers overall. However, there are some distinct differences of which military employees should be aware.
What Damages Are Available to Injured Vet?
To answer this question, we asked Joe Callahan, a Virginia attorney and retired naval officer who represents injured veterans and military dependants in medical malpractice claims against the Veterans’ Administration. Callahan said that generally, there are two types of damages available. Here’s what he told us in a recent interview:
- Economic. The first and often the most significant category is that of economic damages. This consists of any personal expense; any lost income, any out-of-pocket past or future medical expenses not paid for by the government, any costs of vehicle or home adaptation for disabilities in some cases, etc. All of these can be damages recovered in compensation for a veteran injured by medical negligence.
- Non-economic. Pain and suffering damages can also be recovered. These consist of the obvious pain resulting from medical negligence, as well as lost enjoyment of life, participation in hobbies, enjoyment of family relations, etc. Regrettably, an increasing majority of states have enacted so-called “tort reform” measures which limit pain-and-suffering or non-economic damages. Those legal limits apply in Federal Tort Claim cases as well.
What Damage Are Not Available?
There are certain damages that are not available in VA medical malpractice claims and the Federal Tort Claims Act (FTCA) has other limitations as well. Callahan explained:
- Punitive damages. Punitive damages are not available to veterans injured by medical malpractice – no matter how grievous the departure from accepted standards of medical care.
- No jury trial. Another significant distinction is that there is no entitlement to a jury trial under the FTCA, thus damage awards are given by life-tenured federal district court judges. These are senior jurists who in most cases have seen it all. Unlike juries, which can sometimes react with extraordinary sympathy to a medical injury, judges’ awards tend to be more conservative. To put it quite bluntly, judges overall are a lot more stingy than juries.
Even with these limitations of state law on damages, keeping in mind the conservatism of judges when they decide damage awards and with the understanding that punitive damages are not available even in cases of gross malpractice by the VA, Callahan says that presenting a case for damages on behalf of an injured veteran is similar to a proceeding in state court against a private physician.