VA Medical Malpractice Claims

Do I have a valid VA medical malpractice claim?

A VA medical malpractice claim has two essential elements: (1) the VA’s care fell below the accepted standard of care, and (2) that failure directly caused you a serious injury. Only a court can make a final legal determination. Still, our attorneys — along with medical experts — will carefully evaluate your records and the circumstances of your care to assess the strength of your claim before you ever step into a courtroom.

Does the VA medical facility where I was treated affect my rights?

Yes. All treatment provided at a VA hospital, clinic, or facility is generally subject to the Federal Tort Claims Act (FTCA), which governs how you sue the VA. However, if the VA referred you to a private doctor through the Community Care program and that provider caused your injury, your claim would typically proceed as a standard state medical malpractice case — not an FTCA claim. Knowing which law applies to your situation is critical, and our attorneys can help you determine the correct course of action.

Can I file a VA malpractice claim if multiple providers were involved in my care?

Yes, and this is actually one of the advantages of bringing a claim under the FTCA. Because your lawsuit is filed against the United States rather than individual doctors or hospitals, you can include the negligence of multiple VA providers and facilities in a single claim. If non-VA providers also contributed to your injury, those claims can often be pursued alongside your VA claim, though they operate under somewhat different rules.

What if the VA provider who harmed me was a contractor, not a VA employee?

Contractors working inside VA facilities are often covered under the FTCA, but this depends on the specific terms of their contract and the nature of their work. Our attorneys will review the details of your case to determine the appropriate avenue for recovery against contractor personnel.

Can I sue the VA for failure to obtain my informed consent before a procedure?

Yes. If the VA performed a procedure without adequately explaining the risks to you beforehand — and you would not have agreed to the procedure had you known those risks — you may have a valid VA medical malpractice claim based on lack of informed consent.

Can I bring a VA malpractice claim for a missed or delayed diagnosis?

Yes. A delayed or missed diagnosis can form the basis of a strong VA medical malpractice case, particularly if the delay prevented you from receiving treatment that would have led to a better outcome. However, if the VA eventually made the correct diagnosis and provided proper treatment without significant harm resulting from the delay, it is generally more difficult to prevail. Permanent, serious harm resulting from the diagnostic failure is a key factor in the strength of your claim.

What if my injury was caused by a medication error or a VA pharmacy mistake?

If a VA provider prescribed the wrong medication or the VA pharmacy dispensed the wrong drug, you may be able to recover damages. If, however, the VA wrote a correct prescription that was filled by a non-VA pharmacy, or if the medication error originated outside the VA system, your claim against the VA would likely not succeed.

Can I combine multiple VA errors into one malpractice claim?

Yes. Because FTCA claims are brought against the United States, you can include multiple acts of negligence — even by different providers at different VA locations — within a single lawsuit. You do not need to file separate claims for each incident.

Deadlines & Statutes of Limitations

How long do I have to file a VA medical malpractice claim?

Under the Federal Tort Claims Act, you generally have two years from the date the malpractice occurred — or from the date you reasonably discovered it — to file an administrative claim. Missing this deadline can permanently bar your right to recovery. If you suspect VA negligence harmed you, contact a VA malpractice attorney as soon as possible.

What happens if I miss the two-year deadline?

In most cases, missing the FTCA deadline means your claim is permanently barred. There are very narrow exceptions, but they are difficult to establish. This is one of the most critical reasons not to wait — an experienced VA medical malpractice attorney can make sure your claim is filed correctly and on time.

When does the two-year clock start if I didn’t know the VA made a mistake right away?

The statute of limitations generally begins when a reasonable person would have known — or should have known — that malpractice may have occurred. This is known as the “discovery rule.” If the harm was not immediately apparent, you may have additional time. An attorney can evaluate when your clock started running and whether your claim is still viable.

Does it help my case if the VA never told me a mistake occurred?

The VA’s silence about an error can affect when the statute of limitations begins under the discovery rule. However, it does not prevent you from bringing a claim, and the VA’s refusal to acknowledge wrongdoing rarely affects the merits of your case. In our experience, the VA routinely denies responsibility — and veterans still recover significant damages.

The VA Claims Process

Do I have to go through the VA before I can file a lawsuit?

Yes. The FTCA requires veterans to file an administrative claim directly with the VA before filing suit in federal court. Our law firm handles this filing on your behalf and negotiates with the VA to pursue a fair resolution before litigation becomes necessary.

What is Standard Form 95 (SF-95), and why does it matter so much?

The SF-95 is the official government form used to initiate your VA medical malpractice claim at the administrative level. It must clearly describe the nature of your claim and — critically — state a specific dollar amount (called a “sum certain”) for the damages you are seeking. Vague language, such as “damages to be determined” or “full compensation,” is not acceptable and can jeopardize your claim.

This is one of the most consequential decisions in your case: the amount you state on the SF-95 is the maximum you can recover at any point, including at trial. Our attorneys take great care to state a well-supported, realistically high amount from the outset so your potential recovery is not unnecessarily limited.

Can I increase the amount I’m claiming later if my condition worsens?

While there are limited circumstances in which additional damages discovered later can increase the claim amount, courts are generally reluctant to allow upward revisions. This is why we advise clients to seek the highest reasonable, well-documented amount at the beginning of the process.

How long does the VA have to respond to my administrative claim?

By law, the VA has a minimum of six months to respond to your claim, but there is no maximum response deadline. In practice, VA responses typically take nine to twelve months. Once six months have passed without a response, you have the right to proceed with a federal lawsuit. We typically advise clients to wait for a response, because administrative settlement is faster and less costly than litigation — but we will file suit when the VA fails to act or offers inadequate compensation.

What happens if the VA denies my claim?

A denial is not the end of the road. You may request reconsideration, but in most cases, our firm proceeds directly to filing a lawsuit in the United States District Court. A denial simply means the next phase of your case begins.

What does the full VA medical malpractice process look like from start to finish?

Here is a general overview of what to expect:

1. Case Evaluation — Our attorneys review your VA medical records and consult with medical experts to assess whether the VA’s care fell below the standard of care and caused your injuries.
2. Administrative Claim — We prepare and file the SF-95 with the VA, along with supporting documentation.
3. VA Review Period — The VA reviews the claim for six to twelve months and decides whether to offer a settlement.
4. Federal Lawsuit (if needed) — If the VA denies the claim or offers inadequate compensation, we file a complaint in U.S. District Court.
5. Discovery — Both sides exchange medical records, take depositions, and retain expert witnesses.
6. Motions & Settlement Conference — Pre-trial motions are filed, and a federal judge often presides over a settlement conference.
7. Trial — FTCA cases are decided by a judge (bench trial) — there is no jury. The judge hears testimony and expert opinions before ruling on liability and damages.
8. Appeal (if applicable) — Either side may appeal the court’s decision.

How long does a VA malpractice case typically take?

If the VA accepts your claim and offers fair compensation at the administrative level, resolution can happen within about one year. If the VA denies the claim and the case proceeds to federal court, a timeline of two to three years — or longer — is more realistic. We work to resolve cases as efficiently as possible while never sacrificing the value of your claim.

Evidence, Experts & Proving Your Case

Do I need a medical expert to win a VA malpractice case?

In nearly every VA medical malpractice case, yes. While you can file a claim without an expert, you will rarely prevail without expert testimony establishing that the VA’s care fell below the accepted standard. The only exceptions involve obvious negligence — such as a surgical instrument left inside a patient. In the vast majority of cases, our firm works with qualified medical experts to build a compelling case on your behalf.

How do we prove the VA caused my injury and not my preexisting condition?

Causation is often the most challenging element of a VA medical malpractice case. It requires a detailed review of your full medical history — including documentation of any preexisting conditions — and analysis of how the VA’s specific acts of negligence contributed to your injury. Our attorneys work closely with expert witnesses who can provide authoritative opinions on causation based on the medical records and their professional experience.

What if the VA argues my injury was just a known risk of the procedure?

Medical procedures carry inherent risks, and a bad outcome alone does not establish malpractice. However, the existence of known risks does not shield the VA from liability when those risks materialize as a result of negligence. Our attorneys and medical experts work to demonstrate the difference between an unavoidable complication and one caused by substandard care — a distinction that requires experienced, skilled legal representation.

How strong does my case need to be before filing?

Both the strength of your liability claim and the severity of your damages matter. The VA uses its own medical reviewers to evaluate claims; a weak case is unlikely to result in a settlement or a trial victory. Additionally, even a strong malpractice case may not justify the expense, time, and uncertainty of litigation if the damages are limited. We provide an honest, straightforward assessment of your case before we proceed.

How do I get my VA medical records?

The most reliable way is to visit your local VA records office in person and request a complete copy of your records. They are typically provided on a disc. If our office requests them on your behalf, it often takes longer and sometimes requires multiple follow-up requests to ensure we receive a complete set.

Can the VA withhold records from us?

Generally, no. You are entitled to your full VA medical records, and once litigation is underway, the VA may not conceal relevant records during discovery.

What if both VA and private providers treated me? Who is responsible?

Apportioning liability between VA and non-VA providers is one of the most complex aspects of these cases. We review your entire treatment history and work with experts to determine which providers bear responsibility. Non-VA providers can be named in the same lawsuit as the VA, though they operate under state law rules rather than the FTCA. Our firm handles these multi-provider cases when the facts support it.

Damages & Financial Recovery

What damages can I recover in a VA medical malpractice case?

Because FTCA cases borrow from the law of the state where the malpractice occurred, the types of recoverable damages depend on where you were treated. In Nevada, veterans and their families can typically recover for:

• Pain and suffering (subject to a state cap)
• Permanent disability
• Past and future medical expenses incurred outside the VA
• Lost income and earning capacity
• Loss of household services
• Wrongful death damages (if applicable)

Are there limits on how much I can recover from the VA?

There is no cap on total recovery in an FTCA case. However, some states — including Nevada — cap non-economic damages like pain and suffering. In Nevada, the cap is currently $590,000 and increases each year under NRS 41A.035. Special damages — including lost income, medical expenses, and loss of household services — are not capped.

What if the VA malpractice caused a permanent disability?

If you suffered a permanent disability as a result of VA negligence, we will seek maximum compensation for all future medical care needed, lost income, lost household services, and pain and suffering up to the applicable state cap.

Can family members bring a claim if the veteran passed away due to VA malpractice?

Yes. If the VA’s negligence resulted in a veteran’s death, surviving family members can seek damages, including:

• Loss of the veteran’s society, comfort, and companionship
• The veteran’s pain and suffering before death
• Loss of the veteran’s financial support
• Loss of household services that the veteran would have provided

Can a spouse file a claim even if the veteran survived?

Yes. A spouse may have a separate claim for loss of consortium — the loss of companionship, support, and household services resulting from the veteran’s injuries. This claim exists independently of the veteran’s own malpractice claim.

Litigation & Trial

Will my VA malpractice case go to trial?

Most civil cases — including VA malpractice claims — are settled before trial. However, many FTCA cases do proceed to trial, particularly when the VA significantly undervalues a claim or refuses to offer reasonable compensation. Our attorneys are fully prepared to take your case through trial and any subsequent appeals.

Is there a jury trial in FTCA cases against the VA?

No. FTCA cases are decided by bench trial — meaning a federal judge, not a jury, decides both liability and damages. In rare cases where a non-VA provider is also a party to the lawsuit, a jury may decide the state-law claims against that provider, but a judge always decides the claims against the VA.

Will I have to testify or be deposed?

If your case proceeds to litigation, you will almost certainly be deposed — meaning you will answer questions from government attorneys under oath. If the case goes to trial, you will typically be required to testify. However, if your claim is resolved at the administrative level, formal testimony is generally not required.

How does the government defend VA malpractice cases?

Having spent over a decade defending these cases on behalf of the government before switching to represent veterans, our attorneys know the government’s tactics well. The government typically avoids making veterans look bad, as that strategy often backfires. Instead, the government’s defense focuses on:

• The VA provider exercised reasonable professional judgment under the circumstances
• A bad outcome does not prove a mistake was made
• Known risks of a procedure were realized — not negligence

The government will also look closely at any inconsistencies or credibility issues in the veteran’s testimony or conduct. Having experienced legal counsel guide you through this process is essential to protecting the credibility of your claim.

Should I accept a VA settlement offer or go to trial?

That decision is always yours to make, and we will give you a thorough, honest assessment of any settlement offer and what you might realistically expect from litigation. Keep in mind that the VA often significantly undervalues claims during the administrative phase due to limited settlement authority. For cases involving serious injuries or wrongful death, proceeding to litigation frequently results in a substantially higher recovery. We will help you weigh the time, uncertainty, and potential upside of going to trial against the certainty of a settlement.

Attorney Fees & Costs

How much does a VA medical malpractice attorney cost?

Our firm handles FTCA cases on a contingency fee basis — you pay no attorney fees unless we recover compensation for you. The Federal Tort Claims Act limits attorney fees to:

• 20% of the recovery if the case settles at the administrative level
• 25% of the recovery if the case proceeds to litigation

This is significantly lower than the 33–40% contingency fees common in state-court malpractice cases, and it means that experienced legal representation is accessible to veterans regardless of their financial situation.

Who pays for expert witnesses and other case expenses?

Expert witness fees and litigation costs are typically advanced by our firm and recovered from the proceeds of a successful case. If there is no recovery, our firm generally waives these costs. You are not expected to pay out of pocket to pursue your VA malpractice claim.

What if we lose? Do I owe anything?

In the vast majority of cases, if there is no recovery, there are no fees or costs are owed to the attorney. This is why we carefully evaluate each case before accepting it, and why honest communication about the realistic value of your claim is central to our practice.

Practical Concerns for Veterans

Will suing the VA affect my VA benefits or ongoing care?

No. Filing a VA medical malpractice claim will not reduce your disability payments, jeopardize your eligibility for VA programs, or affect the medical care you receive. In most cases, your VA providers will not even be aware that a claim has been filed.

Should I keep treating at the VA while my claim is pending?

Yes — there is generally no reason to stop receiving care at the VA simply because a claim is pending. Your VA providers are typically not made aware of ongoing malpractice claims, and continuing to receive necessary medical treatment is in your best interest, both for your health and for documenting your ongoing damages.

Common Mistakes to Avoid

What are the most common mistakes veterans make in VA malpractice cases?

The single biggest mistake is pursuing a VA medical malpractice claim without an attorney who has specific experience in the Federal Tort Claims Act. FTCA cases involve unique procedural requirements, strict deadlines, and a federal court process that differs significantly from state-level malpractice litigation. Veterans who attempt to handle these claims on their own — or who hire attorneys without FTCA experience — frequently miss critical steps, understate their damages on the SF-95, or fail to meet required deadlines.

Other common mistakes include:

• Understating damages on the SF-95, permanently capping recovery below what the case is worth
• Waiting too long to contact an attorney risks the expiration of the statute of limitations
• Failing to obtain complete VA medical records before filing
• Accepting an early settlement offer without understanding the full value of the claim
• Underestimating the need for medical experts to establish both liability and causation

The most important step you can take is to consult with an experienced VA medical malpractice attorney as soon as possible.

Related Resources:

• Federal Tort Claims Act (FTCA) Overview
• FAQs About Suing the VA