If you or a loved one experienced a surgical error at a military or VA facility, you may be entitled to compensation. Here’s what you need to know to get started:
- Common Errors: Wrong-site surgeries, misdiagnoses, procedural mistakes, and post-operative complications.
- Filing Deadlines: Submit your claim within 2 years of discovering the error.
- Key Steps: File a Standard Form 95, gather medical records, and secure expert testimony.
- Proof Needed: Show negligence, causation, and damages with detailed records and expert analysis.
- Legal Support: Consult an FTCA lawyer to navigate the process and strengthen your case.
Act quickly to protect your rights – deadlines are strict, and evidence is crucial. Below, we break down everything you need to know about filing and proving your claim.
What is Military Medical Malpractice?
Required Evidence for Your Claim
To build a strong case, you’ll need thorough records and expert testimony to demonstrate negligence. Here’s how to gather the necessary documentation, expert opinions, and proof of your losses.
Getting Your Medical Records
Military healthcare facilities keep two types of records: inpatient records for surgeries and hospital stays, and outpatient records for routine visits and follow-ups.
To request your records, you’ll need the following details:
- Full name used during treatment
- Social Security Number
- Name and location of the treatment facility
- Year of hospitalization or treatment
- Type of treatment received
Veterans and next-of-kin can request records through these methods:
| Request Method | Required Documentation |
|---|---|
| Online Portal | Digital verification |
| Mail/Fax (using NA Form 13042) | Proof of identity (and, for next-of-kin, a death certificate) |
Medical Expert Support
Expert testimony is crucial to prove that the surgical care you received didn’t meet acceptable standards. The Arizona Supreme Court highlights the importance of expert guidance:
"In a case where the standard of care or the cause of death is disputed on a matter requiring medical knowledge to resolve, it is difficult, if not impossible, to imagine a situation where lay jurors, untrained in medicine or medical procedure, could properly determine liability absent expert guidance."
When choosing a medical expert, evaluate their qualifications, such as board certifications and academic achievements. Ensure they have experience with cases like yours and can explain medical details in a way that’s easy to understand.
Tracking Costs and Losses
Keep detailed records of all expenses related to your claim, including:
- Medical bills for follow-up care
- Rehabilitation expenses
- Lost wages and benefits
- Travel costs for medical appointments
- Prescription medications
- Medical equipment or home modifications
- Any impact on your military career progression
Create an itemized, dated file of receipts and invoices to document your damages. Veterans and their authorized representatives can access basic medical records for free, although specialized requests may involve fees.
Showing Medical Negligence
Medical Care Standards
To establish a military surgical error claim, you need to demonstrate that the healthcare provider failed to meet the standard of care expected from a competent professional under similar circumstances.
These standards include thorough pre-surgical evaluation and planning, proper surgical techniques, attentive post-operative care, and clear communication about risks.
Proving a Violation of Care Standards
Once the standard of care is defined, the next step is to prove it was not upheld.
Four key elements must be demonstrated to establish a violation of care standards:
| Legal Element | Evidence Needed |
|---|---|
| Duty | Proof of a doctor-patient relationship |
| Negligence | Records showing substandard care |
| Causation | Clear connection between the error and the injury |
| Damages | Documentation of harm and losses |
"A breach of the standard of care is a legal term that describes a situation in which someone fails to meet the expectations set by law for how they should conduct themselves." – Ryan Hughes Law
Linking the Error to the Injury
After proving a breach, you must connect the surgical error to your injury. This requires medical records and expert analysis. Key evidence includes:
- Medical records detailing your condition before and after surgery
- Documentation of post-surgical complications
- A timeline showing when symptoms developed
Expert witnesses are essential. They should demonstrate that the injury would not have happened without the surgical error and explain how alternative treatments could have avoided the harm. These experts must specialize in the same field as the provider in question and clearly articulate how the care fell short of acceptable standards.
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Steps in the VA Claims Process
Filing a military surgical error claim requires following federal guidelines closely. Here’s how to navigate the process effectively.
Completing Form 95 Correctly
Standard Form 95 (SF 95) is essential for filing your FTCA claim. It ensures all necessary details are included. Here’s what you need to provide:
| Form Section | Details Required |
|---|---|
| Personal Details | Full name, contact information, Social Security Number (SSN) |
| Incident Details | Date, location, and names of involved medical staff |
| Injury Description | A detailed explanation of the surgical error and the injury it caused |
| Damages Amount | The exact dollar amount you’re claiming for damages |
| Supporting Documents | Medical records, bills, and expert statements |
Send your completed form to:
Department of Veterans Affairs Office of General Counsel, Torts Law Group
810 Vermont Avenue, NW
Washington, DC 20420
Alternatively, you can email it to ogc.torts@va.gov.
Ensure the form is accurate and submitted on time to avoid delays.
Following Filing Deadlines
Meeting deadlines is critical in the VA claims process. Here’s what you need to know:
- Initial Claim Filing: Submit your administrative claim within two years from when the surgical error and injury were discovered – or reasonably should have been discovered.
- Federal Court Filing: If your administrative claim is denied, you have six months from the written denial date to file a lawsuit in federal court.
Missing these deadlines can jeopardize your case, so act promptly.
What to Do If Denied
If your claim is denied by the VA, take these steps:
- Request a detailed written explanation for the denial and consult an experienced FTCA attorney.
- Collect additional evidence to support your case.
- File your lawsuit in federal court within six months of the denial.
If the VA takes more than six months to process your administrative claim, you can consider it denied and proceed to federal court. Taking swift action is crucial to keeping your case alive.
Making Your Case Stronger
Build a solid case with careful planning and detailed documentation. Here’s how to improve your chances of success.
Secure Experienced Legal Representation
Hire an attorney who specializes in FTCA cases and has experience handling military medical malpractice claims. They should have a track record of success in these cases and a deep understanding of the VA healthcare system.
"When someone is injured or killed by malpractice at a VA facility, it doesn’t affect just them. It affects their entire family. Our law firm represents families in claims against the Department of Veterans Affairs when Department of Veterans Affairs was negligent and caused injury or death to their loved one." – Dr. Michael Archuleta
Once you have the right legal representation, focus on thoroughly documenting your losses.
Documenting Your Damages
Keep detailed records of the following:
- Medical Expenses: Include all treatments, medications, and rehabilitation costs.
- Lost Income: Document time away from work and any reductions in earning capacity.
- Future Care Needs: Estimate the costs of ongoing medical care and support.
- Non-Economic Damages: Track how the injury has affected your daily life and relationships.
Create a timeline of events, noting procedure dates, follow-ups, and when complications were identified. Save medical bills, correspondence with providers, and any evidence of the injury.
With your losses clearly recorded, the next step is to focus on achieving a fair settlement.
Settlement Strategies
For effective negotiation, prepare a strong evidence package and carefully evaluate your claim’s worth.
Evidence Package
Include the following:
- Complete medical records
- Expert testimony explaining how care standards were breached
- Documentation of financial losses
- Assessments of how your quality of life has been affected
Valuation Approach
Estimate the value of your claim by considering:
- Current and future medical expenses
- Lost wages and benefits
- Pain and suffering
- Impact on your quality of life
The VA tends to respond more favorably to well-documented claims supported by expert testimony. Acting promptly when you suspect malpractice is crucial to preserving evidence and meeting filing deadlines.
Next Steps for Military Families
If you suspect a surgical error in military healthcare, it’s crucial to act quickly. The Federal Tort Claims Act (FTCA) has strict deadlines, so don’t wait to take action.
"I encourage you to act as expeditiously as you can when you think that there may be a potential case. It costs nothing, and there is absolutely nothing wrong with having a case evaluated." – Dr. Michael Archuleta
Key Actions to Protect Your Rights
The first step is to seek legal advice from attorneys experienced in FTCA cases and military medical malpractice. These professionals can:
- Review your medical records to assess your claim.
- Help you navigate the VA claims process.
- Secure expert medical testimony to support your case.
- Ensure all damages are properly documented.
Once you have legal support, gather and organize all relevant documents. This includes medical records, communication with healthcare providers, and receipts for any related expenses. A well-prepared file strengthens your case and helps your legal team advocate for you effectively.
Surgical errors don’t just impact the individual – they affect the whole family. Getting expert legal assistance ensures your rights are protected. Many law firms offer free consultations and work on a contingency basis, so you won’t face upfront costs.