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Frequently Asked Question
Can persons injured by bad medical care in military and VA health care facilities sue for malpractice?
Yes. Congress enacted the Federal Tort Claims Act (“FTCA”) in 1946 giving individuals the right to assert a claim against the United States for personal injuries caused by the negligence of federal employees. This includes medical malpractice committed by physicians and other health care providers employed by the federal government.
How does your firm figure out whether or not you will take a case?
After you contact us, we will ask you to send us records relating to your medical care. You may have to get these from the hospital or clinic, but we can tell you how to do this. Once we have reviewed the records and have talked with you, we will decide whether or not we want to file a claim. Sometimes we will need to have a doctor review the material and give us his or her opinions about the case. If we decide to take the case, we will send you a retainer agreement. Again, you owe no fee unless we actually get a cash settlement or award. Rawls, McNelis, & Mitchell generally advances the costs of litigation. Those costs are collected at the conclusion of the case. If the case is settled in the administrative stage, 20% of the total settlement is charged. If the case settles after the litigation stage, 25% of the total settlement is charged.
I've always heard that service members cannot sue for poor medical care they receive in military health care facilities. Is this true?
Yes, for the most part that is true. The United States is not liable for injuries incurred by active duty military personnel. This does not, however, mean that active duty service members cannot sue the United States to recover damages for injuries sustained by their family members. If a spouse or child is injured or killed by medical malpractice in a military or VA medical facility, a service member can frequently bring a lawsuit against the United States to recover damages for such injury or death.
Can veterans sue the United States for medical malpractice?
Yes. Each year, Rawls, McNelis & Mitchell represents scores of veterans in claims against the United States for medical malpractice occurring in VA and military health care facilities.
Will suing the United States over malpractice committed at a military or VA health care facility jeopardize my or my family's entitlement to medical care?
No. Absolutely not. Any form of reprisal against a party asserting his or her rights under the FTCA by an employee or agent of the United States would violate federal law.
Are there any time limits regarding when I can sue the United States for malpractice committed in a VA or military health care facility?
Yes. The FTCA sets a two-year statute of limitations for claims against the United States. The two-year period begins to run on the date that the injury occurred or the date on which the injury was actually discovered (or reasonably should have been discovered by the injured person). Sometimes, the statute of limitations can be extended if the injured party continues to receive treatment for the injury from a military of VA facility. Determining whether a case is barred by the statute of limitations is often a complex task and should be addressed by a competent lawyer who is familiar with the FTCA and its nuances.
Is there a special process for suing the government?
Yes. First, our firm must submit a formal claim on your behalf to the government. This is done on a Standard Form 95 (SF 95), along with a detailed medical narrative supplied by our firm. The SF 95 and its attachments describe the events and the injuries, as well as your damages. The government then has a chance to investigate the claim. Sometimes the government lawyers will ask for additional information or even want to talk with the injured party or their family. If the government promptly denies the claim, you may file suit in federal court. If an SF 95 is filed and the government either fails to offer settlement or takes to much time to decide the case, a plaintiff can file suit after six months.
Where do you file a lawsuit?
The case must be filed in federal court where the malpractice occurred or where you live. If you moved after the treatment or traveled to a distant facility for medical care, then you could file either where you were treated or where you now live.
Do I get a jury trial?
No. The FTCA does not allow jury trials. A federal judge considers the evidence and gives a verdict. One advantage to this process is that a case gets to trial more quickly and the trial itself is speedier.
If I win my case or get a settlement, what is your fee?
The FTCA limits attorneys' fees. If a case is settled, before filing suit, our fee is 20% of the recovery. After the suit has been filed, our fee is 25%. The costs that we advance are collected in addition to the fee.
Isn't it impossible to win a lawsuit against the United States?
No, not at all. The FTCA is a federal law that does provide the United States with a number of legal protections that private health care facilities and providers do not have. Nonetheless, many injured persons, including many clients of Rawls & McNelis, have received settlements and verdicts against the United States for malpractice committed in VA and military health care facilities.
Do I need a local lawyer to file a claim against my local VA or military health care facility for malpractice?
No. While most medical malpractice claims are investigated locally, the persons responsible for settling serious malpractice claims are assigned to central offices, most of which are located in the Washington, D.C. area. Moreover, the United States cannot be sued in state court for medical malpractice. The suit must be brought in federal court under the FTCA, which is a federal law.
Do I need a lot of money to hire a firm such as RawlsMcNelis to bring a medical malpractice claim against the United States?
RawlsMcNelis represents clients on a contingent fee basis. There are no attorney's fees unless there is a monetary recovery from the United States. Moreover, RawlsMcNelis does not typically require a "retainer fee" or an advance payment of costs.