With 1700 VA healthcare facilities providing healthcare to millions of Veterans across the country, malpractice is bound to happen somewhere. When malpractice is committed in a private medical facility, the patient has the option to bring a medical malpractice lawsuit, but the rules are different when a Veteran is harmed during VA treatment. The VA cannot be sued under a typical medical malpractice claim, but there are other solutions available.
38 U.S.C. § 1151 provides Veterans with recourse for mishandled care by allowing them to file for service connection for any disabilities caused by treatment. These claims are handled exactly as they are when the source injury occurred in service. If a veteran is service-connected for a disability or condition caused by VA malpractice, they can receive monthly compensation as well as any back pay benefits earned.
To receive compensation for VA malpractice, a Veteran’s 1151 claim must show the following:
1. The disability must have resulted from VA treatment. The rule specifically names the following types of medical treatment as qualifiers for a claim under 1151:
2. The cause of the disability must be carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of the VA, or an event “not reasonably foreseeable.” In other words, the outcome has to be so unusual that a sane person couldn’t have anticipated it, which means it usually cannot be a common outcome of the surgery like scars or discomfort.
A Veteran can also file an 1151 claim if they suffered an injury during vocational rehabilitation with the VA or if they were injured while participating in compensated work therapy. However, these claims are less common.
To file a disability compensation claim under 1151, a Veteran can use the typical forms for new claims as though they were filing for service connection. These forms are either VA Form 21-526EZ for Veterans filing their first claim with the VA or VA Form 21-526b for Veterans who have previously filed claims for service connection. The Veteran should specify on the form that they are filing the claim under 38 U.S.C. § 1151.
A Veteran should consider timing when filing an 1151 claim. Although there is no statute of limitations on 1151 claims, it benefits Veterans to file early. Those who file for VA disability benefits are compensated for the time it takes to grant a decision if the claim is granted. If the claim is filed within one year of the disability or death, benefits are likely to be retroactive to the date of the disability or death. Filing early also makes the claim easier because evidence is easier to gather when memories are fresh.
If a Veteran is injured during VA treatment, filing a claim under 38 U.S.C. § 1151 might be the best way to receive compensation for a disability. The veterans’ attorneys of Berry Law Firm can help you appeal negative decisions granted by the VA and elevate your disability rating for malpractice claims. Our firm was founded by a three-tour Vietnam veteran and combat lawyer, and our team is dedicated to serving those two serve nationwide.
Contact us today. Your consultation is free.
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