A federal medical malpractice lawsuit involving the Bath VA Medical Center in New York was filed on January 8, 2014 on behalf of a 70-year-old man whose malignant melanoma was diagnosed after a biopsy of a skin lesion but he was not advised of the diagnosis of melanoma until two years later. The VA medical malpractice lawsuit named the United States as the Defendant pursuant to the requirements of the Federal Tort Claims Act and seeks $10 million in compensatory damages for negligent medical care, $10 million for the failure to timely advise the man of his malignant melanoma diagnosis, and $1 million for his wife’s injuries.
The man had been seen by a VA dermatologist in February 2011 during which the dermatologist performed a biopsy on a suspicious skin lesion. Later that same month, the dermatologist received a pathology report that indicated that the biopsy showed ulcerated malignant melanoma. The VA medical malpractice claim alleges that the dermatologist, who has since retired from practice, failed to notify the man regarding the cancer diagnosis. It was not until March 2013 that another dermatologist advised the man regarding the pathology diagnosis two years earlier. Unfortunately, by that time the cancer had metastasized to other parts of his body.
The man had filed the prerequisite notice regarding his claim and his wife’s claim in May 2013, seeking $3.5 million for himself and $500,000 for his wife. The VA had six months to respond to the clam and when it failed to do so, the man and his wife filed their federal medical malpractice lawsuit in the U.S. District Court in Rochester, New York.
Federal Tort Claims Act Requirements
The Federal Tort Claims Act provides the exclusive remedy for most monetary claims for property damage, personal injury, or death arising from the performance of official duties by federal officers and employees. These principally include claims arising from common-law torts, which are negligent or wrongful acts or omissions giving rise to liability to the injured person, as defined by the law of the State or locality where the event occurred.
A tort claim must be presented within two years of the date it accrued. The claimant must complete and sign a Standard Form 95 (Claim for Damage, Injury or Death), and submit it with all necessary documentation. The claimant must: (1) complete both pages (or sides) of the form, (2) provide sufficient information to enable the investigation and evaluation of the claim, and (3) state a dollar amount or sum certain that he or she will accept in full satisfaction of the claim.
No civil action may be instituted on a claim covered by the Federal Tort Claims Act unless the claimant has first timely submitted an administrative claim and: (1) the claim has been finally denied in a written notice in accordance with 28 CFR part 14, or (2) the claim has not been resolved (either settled or denied) within six (6) months of submission. If the claimant has not pursued an administrative tort claim before filing a tort suit against the federal government or a federal employee, the suit must be dismissed.
If a written notice of denial of the claim has been sent, the claimant has six months after the date the notice was mailed to file suit. After six months, the suit is time-barred. The claimant’s demand for damages in the suit may not exceed the dollar amount demanded in the administrative claim, in the absence of new evidence. The Federal Tort Claims Act permits only claims for money damages, not for other forms of relief.
The United States district courts and the District Court of the Virgin Islands have exclusive jurisdiction of actions arising from federal tort claims. The United States is the sole defendant in a suit arising from a federal tort claim. When a claim falls within the scope of the Federal Tort Claims Act, the employee may not be sued personally for money damage unless the claim also arises from: (a) an alleged violation of the claimant’s constitutional rights (a Bivens claim), or (b) an alleged violation of a federal statute expressly authorizing suit against the employee.
The Attorney General defends all suits filed against federal employees that arise from negligence within the scope of employment. When a suit for money damages is filed against an employee alleging tortious conduct, the Attorney General will determine whether the defendant employee was acting within the scope of his or her office or employment at the time of the conduct.
If you may have a medical malpractice claim against the Department of Veteran Affairs or other federal medical malpractice claim, you should prmptly seek the advice of a local federal medical malpractice lawyer in your state who may investigate your federal claim for you and assist you in complying with the numerous and various requirements of the Federal Tort Claims Act.
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