Can You Sue the VA for Malpractice? Yes — But Only One Way, and the Clock Is Short
Reference Guide
Can you sue the VA for malpractice? Yes. Veterans and their families can recover money from the United States when a VA doctor, nurse or other VA health care employee was negligent. But you cannot go straight to court, you cannot sue the doctor personally, and there is no jury. Everything runs through the Federal Tort Claims Act: a written claim to the VA within two years, then a lawsuit in federal court only if the VA says no. This is a guide to that process, not a class action — there is no settlement, no fund and no claim form for VA malpractice in general.
Questions about this case?
AI Legal Assistant · free · answers in seconds · general information, not legal advice
Independent information service: Settlement Insight is not the settlement administrator, is not affiliated with or endorsed by the company named above, and is not a law firm. Submitting this form does not file a claim — it shares your information with our participating legal intake partners, who may contact you about your options.
The Rule: The Federal Tort Claims Act
The VA’s Office of General Counsel describes the law plainly: the Federal Tort Claims Act, 28 U.S.C. 1346(b) and 2671–2680, “provides monetary compensation when a government employee, acting within the scope of employment, injures another by wrongful act or omission.”
Four points decide most cases:
You sue the United States, not the doctor. Under 38 U.S.C. 7316, the FTCA remedy is exclusive of any other suit against the VA health care employee whose act caused the injury.
Only VA employees count. The VA states that the FTCA “does not govern acts of non-VA medical facilities, community care providers, or independent contractors.” If your care came through a community care referral, a claim against that private provider follows ordinary state rules — see, for example, our Texas, Virginia, Tennessee and Washington malpractice calculators.
State law sets the standard. Under 28 U.S.C. 1346(b)(1), the United States is liable where a private person would be, “in accordance with the law of the place where the act or omission occurred.”
Medical errors are covered; VA scheduling and benefit decisions may not be. In Tunac v. United States the Ninth Circuit held that claims about negligence in VA operations must go through the Veterans’ Judicial Review Act pathway, not an FTCA suit.
Case details
An FTCA malpractice case is heard in a U.S. District Court, which has exclusive jurisdiction under 28 U.S.C. 1346(b). Under 28 U.S.C. 2402 it “shall be tried by the court without a jury” — a federal judge decides liability and damages. Under 28 U.S.C. 2674 the United States is not liable “for interest prior to judgment or for punitive damages.” Under 28 U.S.C. 2675(b) the lawsuit cannot ask for more than the sum you stated in your administrative claim, unless the higher amount rests on newly discovered evidence or intervening facts. Under 28 U.S.C. 2678 a lawyer may not take more than 20% of an administrative settlement or 25% of a judgment or a settlement reached after suit is filed.
Where Things Stand: A Process, Not a Settlement
The VA says a claim may be filed on Standard Form 95, but the form is optional if your writing contains three things: a detailed allegation, a sum certain (a total dollar figure), and the signature of the claimant or attorney. It can be emailed to ogc.torts@va.gov; the VA asks claimants not to send VA medical records because it already has them. VA staff “cannot provide legal advice” on the claim. The official page with mailing addresses by state is the VA Office of General Counsel FTCA page.
Who Can Bring a Claim
Anyone injured by the negligence of a VA health care employee acting within the scope of employment — usually the veteran, or the family or estate after a death. The care must have come from the VA itself, not a community care provider or contractor.
The deadline is the real test. Under 28 U.S.C. 2401(b) a tort claim is “forever barred” unless it is presented in writing to the agency within two years after it accrues. Courts measure that from discovery: in Tunac, the Ninth Circuit said a malpractice claim “accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its cause.” You do not need to know it was negligence for the clock to start.
There is a second route. Under 38 U.S.C. 1151, the VA pays disability compensation for an additional disability caused by VA care through “carelessness, negligence, lack of proper skill, error in judgment” or an event not reasonably foreseeable — as if it were service-connected. That is a benefits claim, not a lawsuit; see our VA disability calculator.
What These Cases Have Actually Paid
Syracuse VA, New York: surgery on November 4, 2004 left Charles Malmberg quadriplegic. After a bench trial, the Northern District of New York (Judge Scullin) awarded $4,468,859.91 on August 21, 2014. On March 4, 2016 the Second Circuit vacated the part that cut the award for future care the VA could provide for free, holding a veteran need not “be forced to continue under VA care.”
Phoenix VA, Arizona: on March 6, 2017, KJZZ reported that an Army veteran won a roughly $2.6 million judgment after a weeklong bench trial before U.S. Magistrate Judge Michelle H. Burns, who found staff should have followed up a 2011 prostate exam.
West Haven VA, Connecticut: in March 2021, U.S. District Judge Victor Bolden awarded a Navy veteran and his wife $9.47 million after a four-day trial over a June 2015 hernia repair.
The offset: under 38 U.S.C. 1151(b), if you win an FTCA judgment or settlement for the same disability, Section 1151 benefits stop until the withheld benefits equal that amount.
How a VA Malpractice Claim Moves
Step 1 — You Learn of the Injury and Its Cause
The two-year clock under 28 U.S.C. 2401(b) generally starts when you knew, or reasonably should have known, the injury and what caused it.
Step 2 — Written Claim to the VA Within Two Years
Standard Form 95 or an equivalent writing with a detailed allegation, a sum certain and a signature, sent to the VA Office of General Counsel.
Step 3 — VA Review, Up to Six Months
The VA reviews records, may interview staff and obtain a medical opinion. If it has not decided within six months, 28 U.S.C. 2675(a) lets you treat that as a denial.
Step 4 — Denial Letter Starts a Six-Month Clock
A final denial is mailed by certified or registered mail. You have six months from mailing to sue — or, under 28 CFR 14.9, to ask the VA to reconsider, which gives it six more months.
Step 5 — Lawsuit in Federal District Court
The case is filed against the United States and tried by a judge without a jury, under the law of the state where the care happened.
Step 6 — Judgment or Settlement, Then the Offset
No punitive damages and no pre-judgment interest. Attorney fees are capped at 20% or 25%. Section 1151 benefits for the same disability are offset.
Three Things to Watch For
VA malpractice claims combine a hard deadline with a government form — both are used against veterans:
“VA malpractice settlement” sign-ups
There is no class settlement for VA malpractice. Each claim is individual and goes to the VA Office of General Counsel. A site asking for your Social Security number to “join” a VA payout is not filing anything.
Fees above the legal cap
Under 28 U.S.C. 2678 a lawyer may not take more than 20% of an administrative settlement or 25% of a judgment; charging more is a federal crime. Read any agreement for a higher percentage or for extra fees layered on top.
“We filed it for you” with no copy
If someone says your claim was sent, ask for the signed form and the VA acknowledgment letter. The VA mails one when a claim is received. Without it, the two-year deadline may still be running against you.
Suing the VA for Malpractice — Questions People Actually Ask
Short answers to the questions people ask most about this case.
Can a veteran sue the VA hospital?
Yes, but the defendant is the United States, not the hospital or the doctor. Under 38 U.S.C. 7316 the Federal Tort Claims Act is the exclusive remedy for malpractice by a VA health care employee. You must first file a written administrative claim with the VA within two years; a lawsuit in federal district court comes only after a denial or six months without a decision.
What is federal tort claim act coverage?
The FTCA covers injuries caused by the negligent or wrongful act of a federal employee acting within the scope of employment, judged under the law of the state where it happened. For VA care, the VA says it does not cover non-VA facilities, community care providers or independent contractors. It allows no jury, no punitive damages and no pre-judgment interest.
How long do I have to file a claim against the VA?
Two years from when the claim accrues to get a written claim to the VA, under 28 U.S.C. 2401(b). In Tunac v. United States (9th Cir., filed July 30, 2018), a widow whose husband died December 27, 2009 filed her claim April 17, 2015; the court held it was too late. After a denial you have six months from the mailing date to sue.
Do I have to use Standard Form 95?
No. The VA accepts SF-95 but says it is not mandatory if your written claim has a detailed allegation, a sum certain and a signature. The sum certain matters: under 28 U.S.C. 2675(b) a later lawsuit generally cannot ask for more than the amount you claimed.
Can I get a jury trial or punitive damages?
No. Under 28 U.S.C. 2402 FTCA cases are tried by the court without a jury, and under 28 U.S.C. 2674 the United States is not liable for punitive damages or interest before judgment.
What if my VA referral sent me to a private doctor?
The FTCA does not cover community care providers or independent contractors, according to the VA. A claim against a private provider follows that state’s malpractice rules and deadlines, which are often different from the federal two-year rule.
Should I file a Section 1151 claim, an FTCA claim, or both?
They are different: Section 1151 is a VA benefits claim paid like service-connected disability; the FTCA is a damages claim. Both can be pursued, but under 38 U.S.C. 1151(b) an FTCA judgment or settlement for the same disability offsets later 1151 benefits until they equal that amount.
What is the hardest VA claim to get?
That is a disability-benefits question, and this page does not rank benefit claims. Benefit decisions run through the VA benefits system and appeals process, not the Federal Tort Claims Act — in Tunac the Ninth Circuit held such matters go through the Veterans’ Judicial Review Act pathway. For benefit amounts, see our VA disability calculator.
About This Information
Editorially Reviewed — Content reviewed for accuracy using published legal research, government data, and verified court records. See our methodology. Reviewed by Leonard Goldberg, Editor · Last updated - $236 billion in real payouts analyzed · See what we found
This page is for general information only and is not legal advice. Lawsuit status, eligibility, and compensation can change. Settlement Insight is not a law firm and does not represent any party. Consult a licensed attorney about your specific situation.
Related Consumer Brand Lawsuits
Other cases and free tools — not about this case.
Similar cases we track
- Medical Malpractice CalculatorEstimate what a malpractice claim may be worth before you set a sum
- VA Disability CalculatorSection 1151 benefits are paid like service-connected disability
- Wrongful Death Deadlines by StateState rules that apply alongside the federal two-year claim limit
- Malpractice Payouts by StateFTCA damages follow the law of the state where care happened