Military & VA Medical Malpractice in West Virginia

How to File a VA Medical Malpractice Claim in West Virginia

Filing a medical malpractice claim against a VA facility in West Virginia requires following specific federal procedures under the Federal Tort Claims Act (FTCA). Here are the essential steps:

1. Document Everything

• Medical Records: Request complete copies of all relevant VA medical records
• Timeline: Create a detailed chronology of medical care and when injuries were discovered
• Photographs: Document visible injuries, complications, or conditions
• Witness Information: Gather contact details for anyone who witnessed the incident or its effects
• Financial Impact: Keep records of all medical expenses, lost wages, and other costs

2. Obtain Supporting Medical Records

• Private Healthcare: Collect records from any non-VA providers who treated your injuries
• Expert Review: Have an independent medical expert review your records
• Prior Records: Gather relevant medical history from before the incident
• Current Treatment: Maintain documentation of ongoing medical care

3. File Administrative Claim (SF-95)

• Form Requirements: Complete Standard Form 95 (SF-95) with all required information
• Supporting Documents: Attach relevant medical records and expert opinions
• Damage Amount: Specify exact dollar amount for damages sought
• Filing Location: Submit to VA Office of General Counsel (021) Torts Law Group:
  • 810 Vermont Ave, NW
  • Washington, DC 20420
  • Email: ogc.torts@va.gov
  • Fax: (202) 495-5076

4. Wait for Agency Response

• Review Period: VA has 6 months to investigate and respond
• Investigation: Agency will review records and may request additional information
• Decision Options: VA can accept claim, offer settlement, or deny claim
• No Response: After 6 months, you can treat silence as denial

5. File Federal Lawsuit if Necessary

• Timing: Must file within 6 months of claim denial
• Jurisdiction: File in U.S. District Court for Northern or Southern District of West Virginia
• Legal Representation: Consider retaining an attorney experienced in FTCA claims
• Requirements: Must have completed administrative claim process first

West Virginia FTCA Claims: State Law Considerations

Statute of Limitations

• FTCA Deadline: 2 years from date injury was discovered (28 U.S.C. § 2401(b))
• Discovery Rule: Clock starts when injury and its cause should have been reasonably discovered
• Strict Enforcement: Missing deadline typically bars claim permanently
• State Law Impact: While WV has different deadlines for regular medical malpractice, FTCA claims must follow federal 2-year rule

West Virginia Damage Caps

• Non-Economic Damages: Limited to $250,000 per occurrence (W.Va. Code § 55-7B-8)
• Catastrophic Cases: Cap increases to $500,000 for severe injuries
• Economic Damages: No cap on medical expenses, lost wages, or future care costs
• FTCA Limitations: No punitive damages allowed under federal law

Expert Witness Requirements

• Certificate of Merit: Required before filing (W.Va. Code § 55-7B-6)
• Qualifications: Expert must:
  • Be actively practicing or teaching in same specialty
  • Devote 60% of professional time to active clinical practice or teaching
  • Be licensed and board certified (if applicable)
• Timing: Must be served 30 days before filing complaint
• Content: Must specify how standard of care was breached and resulting harm

Special Considerations

• Sovereign Immunity: FTCA waives federal immunity but maintains specific protections
• Comparative Negligence: West Virginia follows modified comparative fault rule
• Settlement Authority: U.S. Attorney's Office must approve all settlements
• Choice of Law: While federal law governs procedure, West Virginia substantive law applies to liability and damages