Our firm represents veterans - and, right now, I am appalled by a new VA “policy.”
Probably 75% of our nationwide FTCA practice relates to VA medical care. We are familiar with the agency - and the agency knows us too.
With all FTCA cases, you start with a claim. The VA considers it and makes a decision as to whether to attempt to settle the matter or deny it. In theory, this should be done in six months but it almost always takes longer. The timing largely depends on the lawyer assigned.
If a claim is denied, you can file suit or request reconsideration.
The case decision is also lawyer dependent. Some of the VA lawyers are diligent about handling their cases. They will try to settle the ones that need to be settled. They care. Others are another matter.
Apparently, the VA has now decided it doesn't like to do reconsiderations. We recently made a request for reconsideration in a case which we think has merit. We felt the claim decision was wrong. It was denied in less that three weeks.
As anyone who has dealt with the government on much of anything knows, that timing is VERY curious.
The obvious conclusion is that the claim was not reconsidered at all. It was just peremptorily denied.
We have recently seen other requests for reconsiderations denied suspiciously fast. There is a pattern emerging.
What's the big deal, you say. You can still file suit in Federal court.
That's true and some cases are ones that need to be litigated. However, litigation also involves higher fees (25% versus 20%) and much higher costs. If a case can be resolved without having to file suit, the veteran's net recovery is almost always better.
Most of our veterans cases are not big ones. Unlike almost all other malpractice lawyers, we're willing to take cases where the total recovery might only be $100,000 to $200,000. We can get our clients a modest - but for them a significant recovery - and we get a reasonable fee.
We are proud that we can help veterans who do not have a big case. You could say that it is one of our missions.
Economically, however, at a certain level it becomes almost impossible to litigate smaller cases - although we have done so at times when we have felt a denial was particularly ridiculous. Still, as a general rule, fees, costs and risks just don't balance out with the potential client benefit.
If it is unofficially eliminating the reconsideration process - and it sure looks like that from our perspective - the VA will be hurting the constituents it is mandated to serve, veterans.
What's even worse is that the effort is plainly an intentional one.
The VA has an obligation to treat veterans fairly - and that includes ones who file tort claims. The VA is not like some third party insurer which has the unfettered privilege of taking a scorched earth approach with claimants.
Sadly, it now seems to be acting like one.
That is wrong. It's very wrong.
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