Can You Sue the VA for Medical Malpractice?

You can sue the VA for medical malpractice, but only through the Federal Tort Claims Act (FTCA), and only after you have filed a written claim with the VA itself and given the agency a chance to respond. Skip that step or miss the deadline, and the courthouse door closes for good. The path also strips out things most people expect from a malpractice case: no jury, no punitive damages, and a hard cap on what your attorney can charge.

File the Administrative Claim First

Before any lawsuit, you must file a written administrative claim with the VA. This is a jurisdictional requirement, not paperwork you can catch up on later. If you skip it, a federal court has to dismiss your case.¹

Most claimants use Standard Form 95 (SF-95), but any written submission works as long as it contains three things: a detailed description of what happened, a specific dollar amount you are claiming (called a “sum certain”), and your signature or your attorney’s.² You cannot leave the amount blank or write “to be determined.”

Get the sum certain right. It generally caps what you can recover in court later. If you claim $200,000 administratively, you cannot ask a judge for $500,000 unless you can show the increase is based on newly discovered evidence that was not reasonably available when you filed, or on facts that arose afterward.¹ Pull together medical bills, physician statements about future care, and employer records of lost income before you pick a number. You can amend a claim in writing at any time before the VA makes a final decision, though amending resets the agency’s six-month clock.³

The VA assigns claims to regional offices based on the state where the incident happened, so there is no single mailing address. The VA’s Office of General Counsel website lists three regional offices, a fax number, and an email address (ogc.torts@va.gov) that accepts electronic submissions.² Sending your claim to the wrong office can delay things, so confirm the right one for your state before mailing.

The Two-Year Deadline

Your written administrative claim must reach the VA within two years after the claim accrues. Miss that window, and the claim is permanently barred.⁴

“Accrues” is not always the date the malpractice happened. Under the discovery rule from the Supreme Court’s decision in Kubrick v. United States, the clock starts when you know both that you were injured and what caused the injury. If a surgeon left a sponge inside you during a 2024 operation and you only learned of it from an X-ray in 2026, the two-year period runs from the 2026 discovery. One catch: you do not need to know the injury was caused by negligence or that you have a legal claim. Once you know about the injury and its cause, the time is running.

What the VA Does With Your Claim

Once your claim is filed, VA attorneys have six months to investigate. They will review your medical records, may ask for more documentation or an interview, and can order an internal medical advisory opinion. Three things can happen within those six months:

The VA offers a settlement. If you accept, the case ends.
The VA sends a written denial. That triggers a new deadline to sue.
The VA does nothing. Silence for six months counts as a denial, and you can proceed to federal court whenever you choose after that.¹

Filing Suit in Federal Court

If the VA denies your claim in writing, you have six months from the date the denial letter was mailed to file suit in the appropriate United States District Court.⁴ Federal district courts have exclusive jurisdiction; state court is not an option.⁵ If the VA never responded and you are treating the silence as a constructive denial, no fixed deadline is triggered by a letter, but waiting indefinitely is risky. File promptly once the six-month review window ends.

A federal judge, not a jury, decides the case.⁶ The judge applies the malpractice law of the state where the negligent act happened, not a uniform federal standard.⁵ Care at a VA hospital in Texas is judged by Texas law, which affects things like damage caps, expert requirements, and how causation must be proven. Settlement is still possible once suit is filed, and many reasonable claims resolve before a judge rules.

What You Have to Prove

A VA malpractice claim requires the same three elements as any medical malpractice case: a breach of the standard of care, a causal link between the breach and your injury, and damages.

The standard of care is the level of skill and judgment a competent professional in the same specialty would have used under similar circumstances. VA doctors are held to the same standards as physicians in private practice.⁷ Working for the government does not lower the bar.

Causation is where many claims fall apart. Showing the VA made a mistake is not enough. You have to prove that the specific mistake directly caused your injury. If a surgeon nicked a nerve but you would have suffered the same damage from your underlying condition anyway, causation fails.

Damages cover both economic losses (additional medical care, lost wages, future treatment) and non-economic losses (pain, emotional distress, reduced quality of life). Because state law applies, some states cap non-economic damages, which can limit what the court awards even in severe cases.

Expert Witnesses

Most claims require testimony from a qualified medical expert who can explain the standard of care and how the VA provider fell short. Many states also require a preliminary affidavit or certificate of merit from a physician before a malpractice suit can proceed. Courts have occasionally allowed cases forward without expert testimony when the negligence is obvious enough for a layperson to recognize, but that is a narrow exception and not something to bank on. Budget for expert costs early.

What You Can and Cannot Recover

Your recovery is limited to compensatory damages. The government cannot be ordered to pay punitive damages or prejudgment interest, no matter how bad the conduct was.⁸

Attorney fees are capped by statute. For claims resolved administratively, the cap is 20 percent of the settlement. If the case goes to federal court, it rises to 25 percent of the judgment or settlement.⁹ Charging more is a criminal offense. Those caps are lower than the 33 to 40 percent contingency fees typical in private-sector malpractice, which can make it harder to find experienced counsel for smaller claims.

Section 1151 Benefits as an Alternative

An FTCA lawsuit is not the only option. Under 38 U.S.C. § 1151, a veteran who suffers additional disability or death because of VA medical care can receive disability compensation as if the condition were service-connected. The claim goes through the VA’s non-adversarial benefits system rather than federal court.¹⁰

Section 1151 has one broader trigger than the FTCA. You can qualify if the injury was caused by VA negligence or if it resulted from an event that was not reasonably foreseeable, even without any fault by the VA.¹⁰ The FTCA always requires negligence.

You can pursue both paths at once, but the VA will offset any FTCA recovery against your Section 1151 benefits. A $300,000 FTCA settlement, including your share of attorney fees, reduces what the VA pays in ongoing disability compensation.¹¹ Section 1151 is worth considering if your case is strong on the “unforeseeable event” prong or if monthly disability payments suit your situation better than a lump sum. Run the offset math with an attorney before committing to both.

If You Are Still on Active Duty

The FTCA path described here is for veterans receiving VA care. Active-duty service members follow different rules. The Supreme Court’s Feres doctrine has long blocked service members from suing the government under the FTCA for injuries “incident to service,” including military medical malpractice.

Congress created a partial workaround in 2019 with the Richard Stayskal Medical Accountability Act. It set up an administrative claims process for compensation from the Department of Defense over malpractice by military health care providers. Claims are filed with the relevant military branch, not the VA, and go through DoD review rather than the courts.¹² The law does not create a right to file a federal lawsuit. Denials can be appealed to a DoD appeals board, but there is no path to a courtroom.

1
Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite
2
Department of Veterans Affairs. Claims Under the Federal Tort Claims Act
3
eCFR. 28 CFR Part 14 – Administrative Claims Under Federal Tort Claims Act
4
Office of the Law Revision Counsel. 28 USC 2401 – Time for Commencing Action Against United States
5
Office of the Law Revision Counsel. 28 USC 1346 – United States as Defendant
6
Office of the Law Revision Counsel. 28 USC 2402 – Jury Trial in Actions Against United States
7
Department of Veterans Affairs. Application of 38 USC 1151 to Claims Based on VA Failure to Diagnose Pre-Existing Condition
8
Office of the Law Revision Counsel. 28 USC 2674 – Liability of United States
9
Office of the Law Revision Counsel. 28 USC 2678 – Attorney Fees; Penalty
10
Office of the Law Revision Counsel. 38 USC 1151 – Benefits for Persons Disabled by Treatment or Vocational Rehabilitation
11
eCFR. 38 CFR 3.362 – Offsets Under 38 USC 1151(b)
12
Office of the Law Revision Counsel. 10 USC 2733a – Medical Malpractice Claims by Members of the Uniformed Services