Can You Sue the VA for Malpractice? Yes — Under the FTCA
Our VA medical malpractice lawyers file the Standard Form SF-95 administrative claim the Federal Tort Claims Act requires — within two years of the injury (28 U.S.C. § 2401(b)). A doctor-attorney team, $145M+ recovered across 600+ cases in all 50 states.
Free Case EvaluationVA medical malpractice lawyers represent veterans whose care at a Department of Veterans Affairs hospital or clinic fell below the accepted standard and caused injury or death. Because VA physicians are federal employees, all VA malpractice claims are governed by the Federal Tort Claims Act (28 U.S.C. § 1346(b)) — not state malpractice law. The Feres Doctrine does not bar veterans from suing the VA; it applies only to active-duty injuries incident to service. Veterans must file Standard Form SF-95 with the VA's Office of General Counsel within two years of injury (28 U.S.C. § 2401(b)). Our VA medical malpractice attorneys have handled this process for 25+ years and recovered nearly 4× more than unrepresented claimants — $241,641 vs. $63,219 on average.
People Also Ask About Suing the VA
Short, statute-cited answers to the questions veterans most often ask before filing an FTCA claim against the VA.
Can you sue the VA for botched surgery?
Yes. A botched or negligent operation at a VA hospital is an ordinary medical negligence claim, brought against the United States under the Federal Tort Claims Act (28 U.S.C. § 1346(b)(1)) rather than against the hospital or the surgeon. You must first present a Standard Form SF-95 to the VA's Office of General Counsel within two years of the injury (28 U.S.C. § 2401(b)).
Why can't VA doctors get sued?
Because Congress substituted the government as the defendant — not because the claim disappears. Under 38 U.S.C. § 7316(a)(1), the FTCA remedy against the United States is "exclusive of any other civil action or proceeding by reason of the same subject matter against the health care employee." You cannot name the VA physician or nurse personally, but you can sue the United States for exactly the same malpractice.
What are the four things that must be proven to win a medical malpractice suit?
Duty, breach, causation and damages. In a VA case those four elements are supplied by the law of the state where the treatment was given (28 U.S.C. § 1346(b)(1)): a duty of care owed to the patient, a breach of the accepted standard of care, proof that the breach actually caused the injury, and compensable harm. Expert medical testimony is normally required to establish the standard of care and causation.
What are the hardest VA claims to win?
The hardest are the ones defeated by a legal bar rather than by the medicine: injuries to active-duty servicemembers, which the Feres doctrine bars (Feres v. United States, 340 U.S. 135 (1950)); claims presented after the two-year SF-95 deadline has run (28 U.S.C. § 2401(b)); and cases where the records show a bad outcome but no departure from the standard of care, since causation must still be proven by expert testimony.
More detail on who the defendant is in a VA case: can you sue a VA doctor personally under the Westfall Act. For malpractice at a military treatment facility rather than a VA hospital, see how the Feres doctrine applies to active-duty servicemembers.
How to Sue the VA for Malpractice
Suing the VA for malpractice means filing an administrative claim under the Federal Tort Claims Act, not a state-court lawsuit. In short: file Standard Form SF-95 with the VA within two years of the injury, wait for the VA's six-month response window, then settle or sue in federal court if the claim is denied. Here is each step:
- 1
Confirm you have a VA malpractice claim, not a Feres-barred injury
The Feres Doctrine bars active-duty servicemembers from suing over injuries incident to military service — it does not apply to veterans injured during VA medical care. If a VA doctor, nurse, or facility caused your injury, you can sue the VA hospital directly under the FTCA.
- 2
File Standard Form SF-95 within the 2-year deadline
Submit the SF-95 administrative claim to the VA's Office of General Counsel within two years of the date the injury accrued (28 U.S.C. § 2401(b)). Missing this deadline almost always bars the claim.
- 3
Wait for the VA's six-month response
Under 28 U.S.C. § 2675(a), the VA has six months to investigate and respond. If it denies the claim, or six months pass with no response, you may treat the claim as denied and proceed to federal court.
- 4
Negotiate a settlement or file suit in U.S. District Court
Many claims settle administratively. If the VA denies the claim, you have six months from the denial to file a lawsuit in U.S. District Court — there is no jury trial under the FTCA; a federal judge decides the case.
- 5
Attorney fees are capped by law
Under 28 U.S.C. § 2678, VA malpractice attorney fees are capped at 20% for administrative settlements and 25% for court awards — protection built into the statute itself. Most firms, including ours, charge no upfront fee.
What Damages Can You Recover When You Sue the VA?
An FTCA claim against the VA can recover compensatory damages — medical expenses, lost earnings, future care, pain and suffering, and emotional distress. What is available is set by the law of the state where the negligence happened, because 28 U.S.C. § 1346(b)(1) makes the United States liable only as a private person would be in that state. Punitive damages are never available against the government.
Compensatory damages are available — including non-economic harm
Past and future medical care, lost income and earning capacity, pain and suffering, emotional distress, and (where state law allows it) loss of consortium are all recoverable, to the same extent a private defendant could be held liable in the state where the care was given (28 U.S.C. § 1346(b)(1)).
Punitive damages and pre-judgment interest are barred
The United States “shall not be liable for interest prior to judgment or for punitive damages” — 28 U.S.C. § 2674. No FTCA claim, however serious the negligence, can produce a punitive award.
The number on your SF-95 caps your lawsuit
Under 28 U.S.C. § 2675(b), you cannot later sue for more than the sum certain stated on your Standard Form SF-95 — unless the increase rests on newly discovered evidence or intervening facts. Valuing the claim correctly at filing is one of the most consequential decisions in an FTCA case, and it is easy to get wrong without a full picture of future care costs.
State damage caps can apply to a VA claim
Because § 1346(b)(1) borrows the law of the place where the negligence occurred, a state statutory cap on non-economic damages can limit what a veteran recovers from the VA in that state — which is why the same injury can be worth different amounts at different VA facilities.
For what these claims have actually paid, see our analysis of VA tort claim payouts from 16 years of Treasury Judgment Fund data, and for how long the process runs, our VA malpractice case timeline. Every case is different; prior results do not guarantee a similar outcome.
38 U.S.C. § 1151 vs. an FTCA Lawsuit: Two Different Remedies
A veteran harmed by VA medical care has two separate remedies, and they are not alternatives. An FTCA claim is a money-damages tort claim against the United States under 28 U.S.C. § 1346(b)(1). A § 1151 claim is a VA disability benefits claim that pays monthly compensation as if the disability were service-connected (38 U.S.C. § 1151). Most veterans injured by VA care can pursue both.
| 38 U.S.C. § 1151 claim | FTCA claim | |
|---|---|---|
| What it is | VA disability compensation for additional disability or death caused by VA care | A money-damages tort claim against the United States |
| Who decides it | The Department of Veterans Affairs (Veterans Benefits Administration) | The agency on the SF-95, then a U.S. District Court judge |
| How it starts | A VA benefits claim filed with VBA | Presentment of a sum-certain SF-95 to the VA Office of General Counsel |
| Deadline | None. A § 1151 claim can be filed at any time — but the effective date for back pay generally runs from when VA receives the claim | Two years from accrual to present the SF-95 (28 U.S.C. § 2401(b)) — missing it almost always bars the claim |
| What it pays | Monthly compensation, paid as if the disability were service-connected (38 U.S.C. § 1151(a)) | Lump-sum compensatory damages under the law of the state where the care was given (28 U.S.C. § 1346(b)(1)) |
| Pain and suffering, lost wages, future care | Not paid as separate categories | Recoverable to the extent state law allows |
Can you pursue both at once?
Yes. Nothing bars filing a § 1151 benefits claim and an FTCA claim for the same VA-caused injury, and neither one affects an existing service-connected disability rating — that is a separate system measuring a separate thing. What the law does prevent is being paid twice for the identical harm: an FTCA settlement or judgment can offset § 1151 benefit payments going forward. Because FTCA damages reach categories § 1151 never pays — pain and suffering, lost earning capacity, future medical costs — coordinating the two typically produces a higher combined recovery than either alone. How the two interact in a specific case is fact-dependent and worth an attorney's review before either is filed.
The full comparison, including how an FTCA settlement affects VA disability payments, is in our guide to FTCA settlements and VA disability benefits, and the statutory presentment requirements are covered on our Federal Tort Claims Act attorney page.
Harmed at a Military Hospital Instead of a VA Hospital?
The same statute governs care at a military treatment facility, but the deadlines, the agency you file the SF-95 with, and the effect of the Feres Doctrine turn on which branch ran the hospital. Start with the page for that branch:
- Army medical malpractice claims
Army hospitals, community hospitals, and clinics.
- Navy medical malpractice claims
Naval hospitals, medical centers, and Marine Corps clinics.
- Air Force medical malpractice claims
Air Force and Space Force medical groups and squadrons.
- Overseas military hospital malpractice
Care received at U.S. military hospitals abroad.
Federal Tort Claims Act Cases and Veterans Medical Malpractice
FTCA Claims against the U.S. Government
The Federal Tort Claims Act (also known as the FTCA) is a federal law that allows veterans, servicemembers, and their families to file claims against the United States government for personal injury, medical malpractice, wrongful death, and property damage. There are many different types of claims against the U.S. Government and its agencies. A few of these types of claims include:
Types of FTCA Cases
Under the Federal Tort Claims Act, a person may recover damages for injury, wrongful death, and property damage in many different types of cases. However, some of the most common are:
Think you have a VA malpractice claim?
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The Federal Tort Claims Act
A brief history of the Federal Tort Claims Act
Enacted in 1946, the Federal Tort Claims Act was the first time the U.S. Government waived its sovereign immunity and provided a judicial remedy for persons who suffered injury, death, or damage by the negligence of a federal employee acting within the scope of their employment. Since its enactment, the Federal Government has paid millions of dollars to victims of medical malpractice, wrongful death, and property damage.
Can I Sue the VA?
Many people ask, Can I sue the VA? Yes. The Federal Tort Claims Act provides a vehicle that allows an injured person and their family to file a lawsuit against the Department of Veterans Affairs for Medical Malpractice. You can also sue other federal agencies under the FTCA.
Standard Form 95 – Presenting a Federal Tort Claim
The Standard Form 95 is the official U.S. Government form used to present a claim for injury, death, or property damage to the U.S. Government. The form is two pages long and one of the most important documents in the Federal Tort Claims Act Process. Once properly filed, the Standard Form 95 starts the administrative claims process. The Standard Form 95 must be filed within the 2-year statute of limitations. Learn more about the Standard Form 95 process and the FTCA statute of limitations.
The Administrative Claims Process
Before filing a lawsuit against the federal government under the Federal Tort Claims Act, an injured party must first file an administrative claim. Once the administrative claims process begins, the government has 6 months to respond. If the government takes longer than 6 months, you can deem the claim denied and file a lawsuit in federal court. If the government denies your claim, you will have 6 months to file a lawsuit in federal court. For a full walkthrough, see our step-by-step FTCA claim process guide and learn how long a VA malpractice case takes.
What is Veterans Medical Malpractice?
VA medical malpractice is medical malpractice that occurs in U.S. Department of Veterans Affairs (VA) hospitals and facilities. Medical malpractice is when a doctor or medical professional provides substandard quality care to their patient, resulting in injury, harm, accident, or wrongful death. In medical malpractice cases, patients can experience significant physical damage and financial loss because of medical negligence.
Injuries such as a traumatic birth injury can leave veterans and their families with devastating emotional grief and years of financial stress. The Federal Tort Claims Act (FTCA) provides veterans and their families a vehicle to recover money damages against the VA.
If you or your family member has experienced medical malpractice and negligence at a VA hospital, facility, or clinic, the Archuleta Law Firm may be able to help. Contact us today for a Free Case Evaluation using the form below.
Veterans Medical Malpractice Lawyers
Archuleta Law Firm is a leading VA medical malpractice law firm dedicated to protecting the people who serve our country. We take pride in our 25+ year history of successfully representing military members, veterans, and their families when they are injured as a result of negligence.
Our team includes a former U.S. Army Claims Service attorney who spent 28 years adjudicating federal tort claims from the government's perspective. We know how the government evaluates, defends, and settles FTCA claims because we've been on both sides. Learn more about our FTCA attorney practice.
If you or a loved one has been injured as a result of medical negligence at a VA medical facility or hospital, the VA medical malpractice lawyers at Archuleta Law Firm can help. Veterans and military families are often left with not only physical pain or loss but also financial and emotional burdens that take months or years to resolve. The Archuleta Law Firm is here to make sure you won't need to deal with this challenging time alone. Our fees are simple, there is no fee if no recovery.
Doctor-Attorney evaluations are free, and we represent clients in all 50 states and worldwide.
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VA Medical Malpractice Settlements
| Settlement/Judgment Awarded | Received By Clients | Attorney Fees | Branch |
|---|---|---|---|
| $44,717,681 | $15,752,732 | $5,311,982 | Air Force |
| $32,676,410 | $18,967,710 | $6,374,611 | Army |
| $18,708,734 | $8,704,761 | $3,000,000 | Army |
| $10,000,000 | $6,525,317 | $2,500,000 | Army |
| $10,000,000 | $7,384,854 | $2,500,000 | Army |
| $5,800,000 | $4,106,711 | $1,450,000 | Army |
| $2,500,000 | $1,808,041 | $625,000 | Army |
| $4,500,000 | $3,172,468 | $1,125,000 | Army |
| $1,560,000 | $1,133,963 | $390,000 | Veteran's Affairs |
| $2,000,000 | $1,433,500 | $500,000 | Navy |
| $1,000,000 | $701,790 | $250,000 | Army |
| $2,247,280 | $1,597,500 | $532,500 | Army |
| $2,300,000 | $1,623,930 | $575,000 | Navy |
| $1,625,000 | $1,067,624 | $418,248 | Army |
| $1,800,000 | $1,315,992 | $450,000 | Veteran's Affairs |
| $2,150,000 | $1,492,813 | $537,500 | Army |
| $3,000,000 | $2,322,359 | $600,000 | Navy |
| $13,690,648 | $9,183,752 | $3,125,000 | Navy |
| $4,900,000 | $3,898,599 | $1,001,400 | Army |
Archuleta Law Firm Achieved Some of the Largest Medical Malpractice Judgments and Settlements in the History of the FTCA
The Archuleta Law Firm has a long history of helping Veterans and their families who have suffered from military medical malpractice and negligence. We have a Doctor-Attorney and Nurse on staff to review your case for free. We have successfully handled hundreds of VA cases under the Federal Tort Claims Act (FTCA) throughout the United States and abroad.
If you or someone you know was injured at a Veterans Hospital or Clinic you may be entitled to a recovery.
Looking for an Experienced FTCA Attorney?
Our doctor-attorney team has recovered $145 million across 600+ federal tort claims cases. See how we can help with your FTCA claim.
Learn About Our FTCA Practice →Frequently Asked Questions — VA Medical Malpractice Lawyers
Can you sue the VA for malpractice or negligence?
Yes. Veterans and their families can sue the VA for medical malpractice or negligence under the Federal Tort Claims Act (28 U.S.C. § 1346(b)), which waives the government's sovereign immunity for injuries caused by VA doctors, nurses, and staff acting as federal employees. You must first file a Standard Form SF-95 administrative claim within two years of the injury before filing suit in federal court.
Can VA medical malpractice lawyers help me sue the VA?
Yes. VA medical malpractice lawyers who specialize in the Federal Tort Claims Act can file a Standard Form SF-95 administrative claim, negotiate with the VA's legal team, and litigate in federal district court if needed. The Archuleta Law Firm has recovered over $145 million for veterans in VA malpractice cases nationwide.
What is VA medical malpractice?
VA medical malpractice occurs when a Department of Veterans Affairs physician, nurse, or other healthcare provider delivers care below the accepted standard, causing injury or death. Common examples include misdiagnosis, surgical errors, medication errors, and delayed treatment at VA Medical Centers. Because VA staff are federal employees, claims are governed by the Federal Tort Claims Act (28 U.S.C. § 1346(b)).
Does the Feres Doctrine bar veterans from suing the VA?
No. The Feres Doctrine bars active-duty servicemembers from suing for injuries incident to their military service. It does NOT apply to veterans receiving care at VA facilities. Veterans injured by VA negligence have a clear right to sue under the FTCA — the Archuleta Law Firm has successfully litigated hundreds of such cases.
Can you sue the VA for emotional distress or pain and suffering?
Yes. An FTCA claim can recover compensatory damages — including pain and suffering and emotional distress — to the extent the law of the state where the negligence occurred would allow them against a private doctor (28 U.S.C. § 1346(b)(1)). Punitive damages and pre-judgment interest are barred by 28 U.S.C. § 2674. And under 28 U.S.C. § 2675(b), your lawsuit generally cannot seek more than the sum certain you wrote on the SF-95, so that figure has to be right when you file.
How long do I have to file a VA malpractice claim?
Under 28 U.S.C. § 2401(b), you must file your Standard Form SF-95 administrative claim with the VA's Office of General Counsel within two years of the date your injury accrued. Missing this deadline almost always bars your claim. Contact a VA medical malpractice attorney immediately to protect your rights.
How long does it take to sue the VA?
There is no fixed timeline, but the statute sets the milestones. After you file the SF-95, the VA has six months to reach a final disposition (28 U.S.C. § 2675(a)). If it denies the claim, you have six months from the mailing of that denial to file suit in U.S. District Court (28 U.S.C. § 2401(b)); if six months pass with no decision, you may treat the claim as denied and sue. Many claims resolve administratively, while contested cases that reach federal court take considerably longer.
What settlements do VA malpractice lawyers recover?
Based on 16 years of Treasury Judgment Fund data, Archuleta Law Firm clients averaged $241,641 in settlements — nearly four times the $63,219 average for unrepresented claimants. Individual results vary by injury severity, liability, and case facts. Our case results include settlements ranging from $1.5 million to over $44 million.
Are FTCA attorney fees capped?
Yes. Under 28 U.S.C. § 2678, VA medical malpractice attorney fees are capped at 20% for administrative settlements and 25% for cases resolved through federal court litigation — lower than the typical 33-40% contingency fee. The Archuleta Law Firm charges no upfront fees; you pay only if we win.
What is the difference between a 38 U.S.C. § 1151 claim and an FTCA lawsuit?
They are two separate remedies for the same VA-caused harm. A 38 U.S.C. § 1151 claim is a VA disability benefits claim decided by the Veterans Benefits Administration; it pays monthly compensation as if the disability were service-connected, and it has no filing deadline. An FTCA claim is a money-damages tort claim against the United States under 28 U.S.C. § 1346(b)(1); it requires presenting a sum-certain Standard Form SF-95 within two years (28 U.S.C. § 2401(b)) and pays a lump sum measured by the law of the state where the care was given. FTCA damages can include pain and suffering, lost earning capacity, and future medical costs, which § 1151 does not pay as separate categories.
Can you file a § 1151 claim and an FTCA claim at the same time?
Yes. Nothing prevents a veteran from pursuing a 38 U.S.C. § 1151 benefits claim and an FTCA malpractice claim for the same VA-caused injury, and neither affects an existing service-connected disability rating. The law does prevent double recovery for the identical harm — an FTCA settlement or judgment may offset § 1151 benefit payments going forward. Because FTCA damages cover categories § 1151 does not, coordinating both claims typically produces a higher combined recovery than pursuing either alone.
How do I sue the VA for malpractice?
File a Standard Form SF-95 administrative claim with the VA's Office of General Counsel within two years of the injury (28 U.S.C. § 2401(b)). The VA then has six months to investigate under 28 U.S.C. § 2675(a); if it denies the claim or misses that deadline, you can file suit in U.S. District Court within six months of the denial. An experienced VA medical malpractice attorney can prepare the SF-95, value the claim, and negotiate or litigate on your behalf — attorney fees are capped by law under 28 U.S.C. § 2678.
Were you or a loved one injured at a VA hospital?
Our doctor-attorney team has recovered $145 million for veterans across 600+ FTCA cases. The case review is completely free — and there's no fee unless we win.
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