If you believe you were harmed by medical negligence at a Veterans Administration Hospital, you may be a candidate to file a veterans administration hospital lawsuit and build a claim to potentially recover damages.
By understanding this process, you’ll be able to identify whether you’re a potential candidate to file a medical negligence lawsuit, and better understand what is needed in order to file a lawsuit against a veterans administration hospital.
Buckfire Law has provided a step-by-step guide for medical negligence victims to follow when researching when and how to file a VA hospital lawsuit.
1. Get Your Medical Records
If you believe you were harmed by medical negligence, the first step is to get a full and complete set of your medical records. An analysis of your care and treatment is based primarily on your medical chart.
2. Send in a Signed Release Form
Medical facilities cannot legally make you copies or send your medical records unless you have signed a signed authorization. For VA hospitals and clinics, you should use VA Form 10-5345.
In the PURPOSE(S) OR NEED section, check the box for “LEGAL.”
3. What You Should Request
VA Form 10-5345 provides a list of the different portions of your medical chart that can be requested. You will want the entire medical chart from the date of your first treatment to the present time. It is important to have your complete medical history dating back as far as possible to fully determine if you have a case.
You should check the following boxes on the form.
4. Find an Experienced Medical Malpractice Lawyer
You will want to contact a lawyer in your area that specializes in medical malpractice cases. While many lawyers handle personal injury cases, it is important to choose an attorney that is experienced with lawsuits against doctors and hospitals. It is even more important to find one that has sued VA medical centers.
5. How To Find the Best Lawyer for Your Case
There are several ways to find the best lawyer to represent you. You can call the VA Lawyer Referral Service and ask for a recommendation or call your state bar association and request a referral. You can also ask a trusted legal advisor to recommend an attorney best suited for your case.
In addition, you can search the internet for “medical malpractice lawyers who specialize in VA Hospital lawsuits.” This will provide you with several pages of listings for you to review and evaluate. There are also lawyer directories like AVVO and FindLaw that list attorneys with expertise in the different areas of law.
It is best for you to review the ratings and awards of the lawyers you are researching. You should call several lawyers to discuss your case and see if they believe you have a meritorious case. If you receive positive feedback that you have a valid case, the next step is to schedule an office appointment to meet with the attorney.
6. Meeting with the Lawyer
After a lawyer has agreed to review your case, it is best to meet with the lawyer so that you can explain your case in more detail. If you have received your medical records, bring them with you to the meeting. If you have not yet requested your records, the law firm will usually take that step for you.
7. How to Handle the Meeting
It is very important to be completely honest and upfront with the lawyer about your complete medical and psychiatric history. Everything will be in your records so there is no reason to hide anything. A lawyer cannot represent you unless you have been forthright on all issues in the past.
For example, if you have treated for alcohol or drug abuse problems in the past then you need to tell the attorney. Do not be embarrassed or ashamed as lawyers know how to address these matters. If you hide this information from your lawyer, it will damage your ability to succeed in your claim.
8. After the Meeting
After you meet with the lawyer, the law firm will do an internal review of your records. Many firms have nurses and paralegals on staff trained to summarize and evaluate your chart. Many lawyers prefer to do these themselves to best understand the medical and legal issues in the case.
In addition, it is common practice to have your records sent to a physician or nurse to determine if you were the victim of medical malpractice. This expert support is required to file a lawsuit and to ultimately win your case.
9. Understand the Elements of Your Case
It is not enough to just show that you had a bad result or outcome from your hospitalization or medical treatment. You must show that there was negligence and you suffered harm due to medical errors. The legal elements of every medical malpractice lawsuit are:
- One more medical providers were negligent in your care. This means they failed to act as a reasonably prudent doctor or nurse would do in the same or similar circumstances as your care.
- You were injured.
- The negligent treatment was a proximate cause of your injury.
- You suffered damages as a result of the negligence.
You must satisfy each element to be successful in your case. If a doctor was negligent but it did not cause you any harm, then you cannot pursue a case. Also, if you did not have any pain and suffering or economic losses because of medical negligence then you cannot file a claim. Your lawyer will evaluate each element of the case for you.
10. Completing Form 95
All potential claims against the United States government and its agencies should be reported by the Department of Justice and all other government agencies. Although not required, the use of government-approved Form 95 is a convenient way to report the claim.
The completed Form 95 should be submitted directly to the Office of General Counsel through the Chief Counsel located in the geographic area wherein the occurrence complained of took place.
You are required to state a dollar Amount of Claim on the form. Your attorney will help you determine that amount.
11. After Submitting Form 95
The General Counsel or agency has six months to respond to your claim. It may agree to pay your damages, deny your claim, or offer a compromise settlement. If it does not pay your claim or if you cannot agree on a dollar settlement amount, you can file your civil lawsuit. The lawsuit must be filed at a federal courthouse.
12. Beware of Statute of Limitations
Lawsuits against Veterans Administration Hospitals are filed under the Federal Tort Claims Act (FTCA). Congress has enacted a two years statute of limitations for claims against the federal government. When you properly file your Form 95, it “tolls,” or extends the lawsuit deadline period as long as the claim is pending.
There are some exceptions to extend the filing deadline but these are limited and you should make every effort to file your claim within two years of the event. Each state also has its own statute of limitations for medical malpractice lawsuits. There may be an occasion where you need to sue a private doctor not employed by the VA system. As such, you should be aware of potential other deadlines.
13. Filing the Lawsuit
The lawsuit is filed with a legal pleading called the Complaint. The Complaint states the specific facts of your case, which is specifically the course of your care and treatment that serves as the basis for your claim. It also states the various acts of medical negligence you contend were committed by the doctors, nurses, and hospitals.
The Court clerk will also issue a Summons. This is a separate legal document that is served on the government along with the Complaint. After being served, the government has a specified period of time to file its Answer to defend the lawsuit.
14. The Litigation Process
The litigation process then begins and the trial judge will set a court scheduling order. There is a specifically required disclosure under the Federal Rules of Civil Procedure Rule 26. This requires each party to identify particular facts, law, and procedural grounds for moving forward with the case.
In general, the parties will exchange written questions to be answered by the opposing party. Depositions of the parties and witnesses will be taken and then depositions of all medical expert witnesses will be conducted. At the conclusion of discovery, the parties can attempt to settle the matter but if unsuccessful, the case will proceed to a trial.
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