What and When to File?
We addressed the filing requirement for a medical malpractice claim in a prior post. In a nutshell:
1. An administrative claim must be filed prior to a lawsuit,
2. The administrative claim must be filed within 2 years from when the claim arises,
3. Only after the administrative claim has been denied or 6 months has lapsed since its filing can a lawsuit be filed.
4. The lawsuit must be filed in federal court.
Where to File?
The issue then becomes, where must the administrative claim be filed?
As mentioned in our previous post, the administrative claim is typically filed on a standard Form 95 though this is not necessarily required. On the other hand, the claim must be filed with the proper administrative body.
For medical malpractice claims against the VA, the administrative claim would be filed with the Regional Counsel’s office for the VA Office of General Counsel. To identify the appropriate Regional Counsel for the VA medical facility in question, you can visit the VA General Counsel website.
Again, keep in mind that this is separate from the lawsuit that will be required in the event that the claim is denied at the administrative level. The lawsuit would be filed in the federal district court. The proper court will depend on a number of jurisdictional issues that are beyond the scope of this article.
The actual substance of the claim is important as well. The administrative claim must be for a sum certain. This means you must actually ask for a definite dollar amount. This is in contrast to a medical malpractice lawsuit, which will often say something to the effect that the plaintiff (injured patient or family) requests damages in an amount to be determined by a jury.
Why is the “sum certain” requirement important? The sum certain requirement is important because it sets a ceiling on any recovery in a subsequent lawsuit. In other words, if you ask for $100,000 (or 1 million.. 10 million…), that is all that can be requested later in a lawsuit.
There is no limit on the amount that can be requested. However, once that amount is requested, that amount will be the maximum that can be sought or recovered at trial.
In short, you will want to err on the high side. This is particularly so if the total injuries and damages have not yet been determined at the time the administrative claim is filed.
These requirements seem pretty straightforward. However, it is generally advisable to have the assistance of an attorney even in the early stages of these claims. Miscues can bar the claim completely.
Having said that, it is also important to start early. Starting at or near the 2-year deadline will make it very hard to find an attorney. Many attorneys, Collins & Collins, P.C. included, have pretty strict policies against accepting personal injury claims close to deadlines such as the statute of limitations.
This is true even in simple cases such as auto accidents. It is much more so in complex cases such as medical malpractice cases, which can take months to even evaluate.
DIY If You Can’t Find an Attorney
If you cannot find an attorney, then you must file the claims yourself if you wish to pursue them. There are many helpful sites that can guide you through the process. You should review all of them to make sure that you get it right.
When we are faced with a short deadline, we send notices to everyone that might conceivably be required to receive notice. This might be overly cautious but it is far better than missing a required party. In short, if you have a very short deadline (say tomorrow) and you are not sure of where to send the administrative claim, then send it to everyone that might be required.
Here are a couple of particularly helpful sites in case you find yourself in this situation:
American Association of Justice – Protecting Those Who Serve, Navigating the Federal Tort Claims Act
VA Office of General Counsel – Claims Under the Federal Tort Claims Act