Military Medical Malpractice Process

Every medical malpractice case is unique. The attorneys, paralegals, and nurse paralegals at Rawls, McNelis + Mitchell recognize this fact. We have obtained substantial settlements and verdicts on behalf of our clients through a combination of hard work, innovative thinking, and recognition that each case must be individually developed and presented.

We never take a "cookie cutter" approach in representing the veterans, service members, and military families who make up the firm's clients. Nonetheless, virtually every FTCA malpractice claim passes through at least two or more phases during its lifetime. What follows is a general description of what happens.

INVESTIGATION PHASE

The attorneys at Rawls, McNelis + Mitchell realize that the key to success is knowing the facts and medical issues better than your opponent. This is especially so when the opponent is the United States Department of Justice. Our firm does not initiate any medical malpractice claim on behalf of a client without first conducting a thorough investigation of the facts and medical issues.

Our paralegals and nurse paralegals assist in obtaining copies of all relevant medical records, x-rays, imaging studies, and pathology specimens. These documents and materials are organized, thoroughly reviewed, and discussed by the attorneys and staff in conference. If needed, top-flight medical experts in the appropriate medical disciplines are contacted and retained to review the claim. Information regarding medical expense, lost income, and other damages is obtained and evaluated. Expert analysis of the client's economic losses is frequently obtained during this phase.

The duration of the investigation phase varies depending upon the complexity of the case and the volume of medical records involved. However, we are usually able to file a claim on behalf of our clients within two to three months after receiving records and beginning our investigation. In some cases where the time-table is urgent, we can assist in filing claims on an immediate basis.

ADMINISTRATIVE CLAIMS

You cannot sue the United States without first submitting an administrative claim. Our firm accomplishes this by filing a Standard Form 95 and associated documents with the responsible agency (i.e., the VA, the Army, the Navy, or the Air Force) on behalf of our clients.

Once the claim is filed, the involved government agency is allowed at least six months in which to investigate the claim. Theoretically, that agency is supposed to conduct a detailed investigation in order to either deny the claim or make an offer of settlement within six months. Unfortunately, the agency often fails to meet this deadline. If the agency does undertake an investigation, their attorneys will seek one or more medical reviews by their own physicians. Agency lawyers will sometimes request information regarding the claimant's damages and may request an interview with the claimant. We work closely with our clients to present this information in the most persuasive light possible, and to prepare for and present their information effectively during any interview.

At the end of six months, the claimant has the option to allow the government agency more time to investigate the claim, or they may file suit. Occasionally, the agency is able to complete its investigation within the six-month period, but this is rare. The decision to file suit or to allow the agency additional time to administratively evaluate the claim is an important one. Our attorneys counsel our clients regarding this decision based upon a careful consideration of the particular circumstances of each case and the needs of the individual client. If a case is settled during the investigation phase, our firm is paid 20% of the settlement. Our fees are always contingent, that is, we charge our clients nothing unless we obtain a recovery for them.

LITIGATION

Very few people enjoy litigation. However, our attorneys know that litigation is often the only way to get a fair result for our clients.

The United States cannot be sued in state court. Only a Federal District Court can hear matters involving the United States and its agencies. Therefore, all malpractice suits involving VA and military health care must be filed in Federal District Court. There is often more than one Federal District Court where a case can be filed. We counsel our clients on the best court or "forum" for their case.

Once suit is filed, the case proceeds much the same as any other civil lawsuit. The United States is represented by the U.S. Justice Department throught the United States Attorney for the district in which the case is filed. An attorney for the agency involved in the case usually assists the U.S. Attorney in preparing the government's defense.

FEES

One notable difference between a malpractice case against the United States and a case against a private health care provider is that the plaintiff (the party filing the lawsuit) is not entitled to a jury trial. In an FTCA malpractice case, a Federal Judge presides over the trial as both judge and jury. The judge determines whether the VA or military health care providers committed malpractice resulting in an injury. The judge further determines whether the plaintiff is entitled to recover monetary damages as well as the amount they are entitled to recover. If the case is settled in this phase, a fee of 25% is charged. Our fees are always contingent on your winning.

Litigation in Federal Court is complex, and medical malpractice is doubly so. We have the experience and knowledge to navigate the complexities while fighting for a fair resolution to your case.
 

RESOLUTION

In many cases, the litigation phase concludes because the United States and the claimant, who is referred to as "the plaintiff," are able to reach a settlement. The terms of the settlement agreement must be memorialized in a document called a "release." This document is signed by the plaintiff and a representative of the United States. After the release is completed and signed, the United States sends a settlement payment request to the United States Department of Treasury. The Department of Treasury usually issues payment, either by check or wire transfer, within six to ten weeks from the date it receives the request.

In the event of a verdict in favor of the plaintiff, the court's order is forwarded to the Department of the Treasury for payment. However, before a request for payment is sent, the court's decision will be reviewed by the United States Attorney, the government agency involved, and the Department of Justice. Fortunately, these reviews move fairly quickly and appeals by the government from a district court decision are relatively rare.

As you can see, medical malpractice cases against federal agencies involve a lengthy and complicated process. Most importantly, no two cases ever take exactly the same path. Having an experienced team like Rawls, McNelis & Mitchell on your side can make all the difference.


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