- 2-Year Deadline: File your claim within 2 years from when the misdiagnosis was discovered (or should have been discovered).
- Key Document: Use Standard Form 95 (SF-95) to start your claim, detailing the negligence and the exact amount of damages requested.
- Proof of Negligence: Collect medical records, bills, employment records, and expert opinions to show the VA didn’t meet standard care.
- After Denial: You have 6 months to file a federal lawsuit if your claim is denied.
Quick Comparison: FTCA vs. Regular Malpractice Cases
| Feature | FTCA Claims | Standard Malpractice Cases |
|---|---|---|
| Defendant | U.S. Government | Private Providers |
| Initial Process | File Form 95 | Direct Lawsuit |
| Trial Type | Federal Judge (No Jury) | Jury Trial Available |
| Attorney Fees | Capped at 20–25% | No Federal Caps |
Act fast – missing deadlines can make your claim invalid. If you’re unsure, consult an experienced attorney to guide you through the process.
KARE 11 Investigates: Deadline nears for Veterans …
Federal Tort Claims Act Basics
The Federal Tort Claims Act (FTCA) allows veterans and their families to seek compensation when VA medical negligence leads to harm, by waiving the government’s sovereign immunity.
Who Can File FTCA Claims
Veterans and their families are eligible to file claims if medical negligence at a VA facility caused harm. This includes:
- Veterans who suffered from negligent care at VA facilities
- Family members filing wrongful death claims for deceased veterans
- Authorized representatives acting on behalf of veterans who cannot file themselves
"Often, claimants doubt any possibility of recovery against the federal government." – Dr. Michael Archuleta, Physician and FTCA Attorney
To succeed in an FTCA claim, it must be proven that the provider’s actions failed to meet local care standards.
FTCA vs. Regular Malpractice Cases
FTCA claims differ from standard malpractice lawsuits in several key ways, especially in terms of process and legal structure. Here’s a quick comparison:
| Feature | FTCA Claims | Standard Malpractice Cases |
|---|---|---|
| Defendant | U.S. Government | Private healthcare providers |
| Initial Process | Requires filing an administrative claim (Form 95) | Can directly file a lawsuit |
| Trial Type | Federal judge decides (no jury) | Jury trial available |
| Attorney Fees | Capped at 20–25% of recovery | No federal caps on fees |
| Damages | Determined by state law where the incident occurred | Varies by state jurisdiction |
In these cases, the government essentially acts as its own insurer, with claims handled by federal agencies instead of private insurance companies.
Filing Deadlines for VA Claims
Veterans need to adhere to strict timelines when filing claims to protect their rights and move their cases forward.
2-Year Filing Window
Veterans have a two-year deadline to file, starting from the date the injury is discovered – or should have been discovered. For instance, if an injury is identified on April 15, 2025, the claim must be filed by April 15, 2027.
Extensions to the Deadline
If an injury isn’t immediately noticeable, the discovery rule may apply. This rule helps veterans who uncover medical negligence after the usual filing period. Examples include complications that appear over time or newly revealed errors in medical records.
However, not taking advantage of these extensions can result in claims being dismissed as invalid.
What Happens If You Miss the Deadline?
Missing the filing deadline makes the claim invalid and unenforceable. In many cases, a statute of repose sets a final, non-negotiable deadline, reinforcing the importance of filing within the two-year period. If you’re unsure about your timeline, it’s crucial to consult with an FTCA attorney as soon as possible.
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Required Documents and Evidence
Now that you’re aware of the strict filing deadlines, it’s time to focus on gathering the necessary documents to back up your claim. Accurate and thorough documentation is key to making your case.
Filing Form SF-95
To start your Federal Tort Claims Act (FTCA) claim against the VA, you’ll need Standard Form 95 (SF-95). While this form isn’t technically required, filling it out correctly is critical. Here’s what to include:
- A clear explanation of the medical negligence
- The exact amount of damages (this is known as the "sum certain")
- Your full signature
- Information about all claimants involved
Keep in mind: The clock starts ticking on your claim from the date the VA receives the completed form – not when you mail it. This makes accuracy and timing extremely important to meet the two-year deadline.
Required Medical Records
Comprehensive medical records are crucial for supporting your claim. The VA offers several ways to access these records:
- Online: Use My HealtheVet on VA.gov for quick access to digital records.
- In-Person: Visit the Release of Information Office at your VA facility with your Veterans Health ID or driver’s license.
- Mail or Fax: Submit VA Form 10-5345a to request your records.
Here’s how long you might wait:
- Digital records: Up to 30 calendar days
- Paper records: Up to 60 calendar days
Proving Medical Negligence
To show that VA healthcare providers didn’t meet acceptable standards, you’ll need solid evidence. This may include:
- Itemized medical bills
- Estimates for future medical costs
- A statement from your treating physician
- VA examination reports
- Employment records showing missed work
- Expert medical opinions
The Veterans Health Information Exchange (VHIE) program can help you gather records from both VA and non-VA healthcare providers, giving you a complete view of your medical history and treatment. For more complex cases, consulting a medical expert can help prove that the standard of care wasn’t met, strengthening your claim.
VA Claim Review Steps
Once you’ve submitted your evidence and met the necessary deadlines, it’s important to understand how the VA reviews your claim.
6-Month VA Review Period
After receiving your claim, the VA begins its review process. A Veterans Service Representative (VSR) will evaluate your submission and may ask for additional evidence or schedule a Compensation & Pension (C&P) exam. Once all evidence is gathered, a Ratings Veterans Service Representative (RVSR) will assess your application and make a decision.
According to recent VA data, the average processing time for disability-related claims is 137.5 days as of February 2025. However, more complex cases, such as those involving misdiagnoses, can take significantly longer – some claims average 341 days for a final decision. If your claim is denied, knowing the next steps is crucial.
After Claim Denial
If the VA denies your claim, you have several options to challenge the decision:
-
Clinical Appeal
You can contact your VA patient advocate to initiate a clinical appeal if you believe the decision was incorrect. -
Higher-Level Review
Use VA Form 20-0996 to request a higher-level review within one year of the decision. A senior reviewer will reassess your case without considering new evidence. -
Supplemental Claim
File VA Form 20-0995 if you have new evidence that wasn’t included in your original claim. This option is available indefinitely after the initial decision.
Taking Legal Action
If administrative options don’t resolve your case, you can file a federal lawsuit under the Federal Tort Claims Act (FTCA). This must be done within six months of a denial or constructive denial. Missing this deadline can result in losing your right to seek compensation in court.
To monitor your claim status, you can use:
- The VA.gov online portal
- The VA’s toll-free number: 800-827-1000
- Your local VA regional office
- The VA appeals tracker system
Given the complexities of FTCA cases, it’s wise to consult an attorney with experience in both medical malpractice and FTCA claims before pursuing legal action.
Summary
Here’s a quick overview of the deadlines, documents, and claim requirements for VA misdiagnosis cases. Successfully handling these claims requires meeting strict timelines and submitting the right paperwork.
Key Filing Deadlines
- 2 years from when the misdiagnosis is discovered
- 6 months to file a lawsuit after a denial
- 1 year to request a Decision Review
Required Documentation
- Standard Form 95 (SF-95) for FTCA claims
- Medical records from both VA and private providers that show the misdiagnosis
- Service treatment records and DD214
- Statements from family, friends, or fellow service members
Critical Claim Requirements
- Evidence of a current disability
- Proof of an event or injury tied to service
- Medical records connecting the condition to service
- For VA care claims, include proof of negligence or unexpected complications tied to service
If your claim is denied, you can request a Higher-Level Review, file a Supplemental Claim, or appeal to the Board of Veterans’ Appeals.
Errors in your SF-95 form could result in a denial or reduced compensation. To avoid this, consider working with an experienced FTCA attorney early on.
You can track your claim through VA.gov, by calling the VA at 800-827-1000, or by visiting your local VA office. Staying organized and submitting strong evidence will improve your chances of success.