A recent Associated Press article reported that a veteran of the U.S. Army is suing the federal government for the partial amputation of his genitals. He is claiming that he was the victim of VA hospital medical malpractice
The 61-year-old veteran alleges that a VA nurse put ice packs on his genitals after surgery for a penile implant and circumcision. The article suggests that the nurse left the ice packs in place for 19 hours, causing frostbite, gangrene and the eventual partial amputation of his creative organ.
You may be wondering what this veteran could do in order to be compensated for this alleged VA hospital medical malpractice or perhaps you or someone you know has been the victim of VA hospital medical malpractice in one way or another. If this is the case, there are a few different options to pursue a remedy.
One option you have is to file a claim under 38 U.S.C.S. §1151. Under Section 1151, if you have suffered a disability or death as a result of negligent VA hospital care or medical treatment, you may be entitled to additional VA benefits. Section 1151 treats a disability or death resulting from VA’s negligence as if the disability were service connected. Therefore, under Section 1151, you would receive VA compensation according to the VA rating code.
For example, the veteran above would likely be found to have loss of use of a creative organ and receive special monthly compensation of about $100. Additionally, because he suffered the removal of half or more of his penis, the veteran’s disability would be evaluated at 30 percent, which means he would receive a monthly compensation of about $389, or $489 if you count the special monthly compensation for loss of use. There is not a statute of limitations for Section 1151 claims, so you can file this claim any time after the alleged negligence took place.
Another option is to file a claim under the Federal Tort Claims Act (FTCA) for VA hospital medical malpractice. Often, a veterans disability benefits attorney is hired immediately to navigate this process into federal court. If you file an FTCA claim, you must first file an administrative claim with the VA within two years after such claim accrued (generally at the time of injury) and receive an explicit or constructive denial from the VA. You should complete Standard Form 95 and file it with the Regional Counsel at the VA Regional Office in the area where the alleged malpractice took place to start your administrative claim. You should also know that you can file a Section 1151 claim and an FTCA administrative claim at the same time, but your Section 1151 benefits would be offset by your FTCA damages award if both are successful.
After filing an FTCA administrative claim and receiving an explicit or constructive denial, you can file an FTCA claim in federal district court but must do so within six months of the administrative denial. If you fail to meet the two-year deadline for an FTCA administrative claim or the subsequent six-month deadline for an FTCA claim in federal district court, your FTCA claim will be dismissed. So it is very important to meet those deadlines.
Once you have properly filed an FTCA claim, it is generally proved in the same way that a Section 1151 claim is proved – by showing that you suffered disability or death as a result of the federal government’s negligence. An FTCA claim is different in that the negligence can be caused by “any VA employee” within the scope of his employment (such as a maintenance worker or cook) as opposed to the requirement for Section 1151 that it must be caused by VA hospital care, medical or surgical treatment or examination.
An FTCA claim is also different because it requires a different standard of proof. An FTCA claim requires a preponderance of the evidence, while a Section 1151 claim requires a lesser standard of proof, which is benefit of the doubt. Additionally, an FTCA claim provides compensation for loss of earning capacity, pain and suffering, as well as attorneys’ fees, court costs and other claim expenses. This is why our Army veteran who lost a portion of his penis filed an FTCA claim. He is seeking a $10 million award as opposed to the monthly $489 that he would possibly receive under Section 1151.
While it may seem somewhat simple from this explanation to file for claims under Section 1151 and the FTCA, these claims can quickly become very complicated. I have talked about these claims in general terms, but if you think that you have a possible claim based on your reading of this article, let the veterans’ disability benefits attorneys at the Berry Law Firm help you determine what to do next. Please contact us at 1.888.883.2483 for a free consultation.
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