VA Malpractice Statute of Limitations
UPDATED: February 20, 2013
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Like any medical malpractice lawsuit, injured parties must be very careful of filing their claim within the statute of limitations to avoid losing their right to recover. Lawsuits against the Veterans’ Administration (VA) are subject to a statute of limitations; however, the process is a bit different.
Two Years Following the Date of Injury
Joe Callahan, a Virginia attorney and retired naval officer who represents injured veterans and military dependants in medical malpractice claims against the Veterans’ Administration, provided us with the following information on how the statute of limitations works in VA cases, “The statute of limitations under the Federal Tort Claims Act (FTCA) requires that the administrative claim must be received by the Department of Veterans Affairs no later than two years following the date of the injury, or in some cases, two years after a ‘reasonable person’ should have become aware of the injury. That ‘reasonable person’ standard is a very strict one.”
“It does not mean the date when the veteran is advised by a lawyer or even another doctor that he or she suffered an act of malpractice. It means the date when a person who goes in for medical care and comes out with a bad outcome, or without relief for their symptoms, should reasonably start questioning whether they have received appropriate medical care.” Callahan provided the following example:
For example, let’s say a veteran goes into the hospital to have his tonsils removed. He comes out a week later unable to speak. Before discharge, his VA doctor tells him, “This happens from time to time; don’t worry, your voice will come back eventually.” In this case, the law requires the veteran to start thinking about whether he has a claim just as soon as a ‘reasonable person’ might suspect that they MAY have been the victim of malpractice.
Now, if an ear/nose/throat doctor tells the veteran 25 months later, “Gee, your doctor misled you, that should never have happened,” it may very well be too late to start thinking about filing a Federal Tort Claim.
Better to Act Sooner Than Later
Callahan says that courts don’t expect veterans to rush to conclusions about the quality of care after every bump in the road of medical treatment. However, he cautioned that, “They do expect injured veterans who are uncertain of whether they may have experienced malpractice to do research on their own, or to consult with an attorney within two years. Most courts view that as a more than adequate time in which to pick up the phone and ask a lawyer whether they have a case in malpractice. Clearly, any veteran who feels they may have suffered from medical malpractice should make that inquiry sooner rather than later.”
An Important Caution
In addition to the statute of limitations governing claims against the federal government, there is a very important caution for all veterans to keep in mind, according to Callahan. “Specifically, if your ‘VA’ doctor or nurse was an independent contractor and not employed by the United States, then you may run out of time to file your claim much earlier! Veterans should keep in mind that the VA and military clinics are staffed with an increasing number of independent contractor physicians and nurses. If you are the victim of medical negligence, and your VA doctor or nurse was such a contractor, then the law in your state (the locality of the injury) will control how long you have to bring a claim. Many states provide much shorter periods in which to file a malpractice claim or lawsuit.”
Make Sure Your Time Doesn’t Run Out
It’s clear that some VA claims may be more complex than those against healthcare providers in the private sector. According to Callahan, “This makes it all the more important to consult as soon as possible with a qualified attorney, since sorting out who is and isn’t a ‘VA employee’ can take a good deal of time in itself. Failing to act promptly may mean that an injured veteran finds out too late that their time to pursue a claim has run out because state law and not the FTCA governed their deadline for filing.”