Can you sue the VA for medical malpractice?

Federal law does allow claims against the United States over negligent care by VA health care employees, but the process is different from a claim against a private doctor. These claims run through a federal law, the Federal Tort Claims Act (FTCA), which requires a written claim to the VA first and has its own federal deadlines. Veterans may also be able to apply for a separate VA disability benefit, and active-duty service members have a different, newer process.

This guide explains how each path works in plain terms. We are not attorneys, and we never evaluate anyone’s situation. Whether a particular claim can go forward is a question for an attorney licensed in your state.

How the Federal Tort Claims Act works

The FTCA gives federal district courts jurisdiction over claims for injury or death “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment,” where a private person would be liable under “the law of the place where the act or omission occurred” (28 U.S.C. § 1346(b)(1)).

Two things follow from that wording:

• The claim is against the United States. For malpractice by a VA health care employee, the FTCA remedy is exclusive of any other civil action against the individual employee for the same subject matter. The statute lists physicians, nurses, pharmacists, physician assistants, therapists and other supporting personnel (38 U.S.C. § 7316(a)).
• State law still matters. Whether the care was negligent is judged under the law of the state where it happened, so the same federal process can apply different rules in Florida, Arizona or anywhere else.

Who is covered, and who isn’t

The FTCA applies to “employees of the government,” a term that includes officers and employees of any federal agency and persons acting on behalf of an agency in an official capacity. The definition of “federal agency” expressly “does not include any contractor with the United States” (28 U.S.C. § 2671).

The VA’s Office of General Counsel says the FTCA “does not govern acts of non-VA medical facilities, community care providers, or independent contractors” (VA, Claims Under the Federal Tort Claims Act). That matters if you received care outside a VA facility, even if the VA arranged or paid for it. Whether a particular doctor or clinic counts as a VA employee or a contractor can depend on the details, and it’s one of the first things an attorney looks at.

The written claim to the VA comes first

You can’t start with a lawsuit. The FTCA says an action “shall not be instituted” until the claimant has first presented the claim to the appropriate federal agency and the agency has denied it in writing (28 U.S.C. § 2675(a)).

According to the VA’s Office of General Counsel (VA, Claims Under the Federal Tort Claims Act):

• A claim may be filed on Standard Form 95, “Claim for Damage, Injury, or Death,” but the form isn’t mandatory as long as the claim is in writing and includes a detailed allegation, a “sum certain” (a specific total amount claimed), and the signature of the claimant or the claimant’s attorney.
• The VA page lists where to send a claim by email, mail or fax, with mailing addresses grouped by state.
• The office says it already has access to VA medical records and asks people not to send them.
• After a claim arrives, the office says it reviews the allegations and records, conducts interviews, obtains a medical advisory opinion if applicable, and reviews state and federal law before a decision.
• VA staff who handle these claims “cannot provide legal advice” about filing them.

The amount stated in the claim matters later. A lawsuit under the FTCA generally can’t ask for more than the amount of the claim presented to the agency, except where the increase is based on newly discovered evidence or intervening facts (28 U.S.C. § 2675(b)). That’s one reason to consider talking with an attorney licensed in your state before the claim is filed, not after.

The federal deadlines

The FTCA has two separate time limits. A tort claim against the United States is “forever barred” unless it is:

1. presented in writing to the appropriate federal agency within two years after the claim accrues, or
2. followed by a lawsuit begun within six months after the agency mails its notice of final denial by certified or registered mail (28 U.S.C. § 2401(b)).

The VA’s page states the first deadline this way: a tort claim “must be received by the proper agency within two years of the date the claim accrued” (VA, Claims Under the Federal Tort Claims Act).

If the agency doesn’t make a final decision within six months after the claim is filed, the claimant may choose to treat that as a final denial (28 U.S.C. § 2675(a)).

When a claim “accrues” is a legal question, and it isn’t always the date of the treatment. An attorney licensed in your state can tell you how these deadlines apply to your dates.

If a claim goes to court

An FTCA lawsuit is filed in federal district court (28 U.S.C. § 1346(b)(1)). One difference from a lawsuit against a private hospital: an action against the United States under § 1346 is “tried by the court without a jury,” meaning a federal judge decides it. (The one exception in that statute, for actions under § 1346(a)(1), covers suits to recover federal taxes, not malpractice claims.) See 28 U.S.C. § 2402.

Whether a case is strong enough to bring is decided by an attorney, usually working with a medical expert, based on the records. For how attorneys think about that, see why attorneys turn down medical malpractice cases.

A separate path: VA disability benefits under Section 1151

Separately from the FTCA, federal law provides VA disability compensation for certain injuries caused by VA care, paid “in the same manner as if such additional disability or death were service-connected.” It applies when the disability or death was caused by hospital care, medical or surgical treatment, or an examination furnished by a VA employee or in a VA facility, and the proximate cause was carelessness, negligence, lack of proper skill, error in judgment or similar fault by the VA, or “an event not reasonably foreseeable.” It also covers injuries from certain VA vocational rehabilitation and compensated work therapy programs (38 U.S.C. § 1151(a)).

The VA’s own page explains (VA, Title 38 U.S.C. 1151 claims):

• The added disability, or the worsening of an existing one, “must not have been a reasonably expected result or complication of treatment.”
• If you qualify, your monthly compensation changes, but your disability rating stays the same.
• You file it as a disability compensation claim, online, by mail, in person, or with the help of a trained professional, and you’ll have to show the added disability happened because of VA care or a covered VA program.

The two paths are different. A Section 1151 claim is a benefits claim decided by the VA. An FTCA claim is a negligence claim against the United States that can end up in federal court. They can also interact: § 1151(b) addresses how benefits are handled when a person also receives an FTCA judgment, settlement or compromise for the same disability or death. An attorney licensed in your state can explain how the two fit together in a given situation.

Active-duty service members: a different process

For decades, service members generally could not bring FTCA claims for injuries related to their service. In Feres v. United States (1950), the Supreme Court held that the government “is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service” (Feres v. United States, 340 U.S. 135).

Congress later created an administrative claims process for medical malpractice by Department of Defense (DoD) health care providers (10 U.S.C. § 2733a). Under the statute, a claim may be paid only if, among other things:

• it is filed by the service member, or by an authorized representative if the member has died or is incapacitated;
• it is for injury or death caused by a DoD health care provider acting within the scope of employment;
• the act or omission happened in a covered military medical treatment facility;
• it is presented to the Department in writing within two years after the claim accrues; and
• it is substantiated under DoD regulations.

The DoD rules for these claims are at 32 C.F.R. Part 45. They require a written claim that states the factual basis and a specified amount, and, unless the problem is within the general knowledge of laypeople, an affidavit that the claimant or the claimant’s attorney consulted a health care professional who found a breach of the standard of care (§ 45.4). Under § 45.14, the adjudication and settlement of a claim is “final and conclusive and not subject to review in any court.” If a claim is denied, the statute requires DoD to explain why, including copies of expert reports it relied on (§ 2733a(f)).

This process is separate from both the FTCA and VA benefits, and it doesn’t apply to veterans’ claims about care at a VA facility.

Before you talk with an attorney

• Get medical care for any ongoing problem first. In an emergency, call 911.
• Write down dates, facilities and names while they’re fresh, and keep copies of what you were given. Our guide on what to do after a possible medical mistake walks through this.
• Note whether the care was at a VA facility, at a military treatment facility, or at an outside provider, because the path can differ for each.
• Keep track of time. The two-year limits above run whether or not you have every document.

Keep your records and notes yourself; we never ask you to send them to us. To learn what medical malpractice generally means, see medical malpractice, and to learn how our service will connect people with independent participating attorneys, see how it works.

What has changed since we first wrote about this

MalpracticeAttorneys.com first covered suing the VA for medical malpractice in 2015, in an earlier article on this site. That article is no longer online. Laws and rules have changed since then, and this guide was written new from current sources checked on September 26, 2026.

Changes we verified:

• A claims process for active-duty service members. 10 U.S.C. § 2733a was added by Public Law 116-92 on December 20, 2019, and applies to claims filed on or after January 1, 2020 (10 U.S.C. § 2733a, statutory notes). DoD’s rules at 32 C.F.R. Part 45 were first published on June 17, 2021 (86 FR 32208).
• More explanation when those claims are denied. Congress amended § 2733a in 2023 (Public Law 118-31) to require a detailed justification of any denial, and again in 2024 (Public Law 118-159) to require information on the qualifications of experts relied on and to require board-certified experts where board certification applies.

Rules can keep changing. Confirm current law with an attorney licensed in your state.

Sources and corrections

We wrote this guide from the primary sources below and checked it against them on September 26, 2026.

• 28 U.S.C. § 1346(b): FTCA jurisdiction and state law of the place
• 28 U.S.C. § 2671: employee of the government; contractors excluded
• 28 U.S.C. § 2675: administrative claim first; amount of claim
• 28 U.S.C. § 2401(b): two-year and six-month deadlines
• 28 U.S.C. § 2402: trial without a jury
• 38 U.S.C. § 7316: exclusive remedy for VA health care employees
• VA Office of General Counsel, Claims Under the Federal Tort Claims Act: how to file with the VA
• 38 U.S.C. § 1151: benefits for injury from VA care
• VA, Title 38 U.S.C. 1151 claims: eligibility and filing
• Feres v. United States, 340 U.S. 135 (1950): injuries incident to service
• 10 U.S.C. § 2733a: military medical malpractice claims
• 32 C.F.R. Part 45: DoD rules for those claims

We are not attorneys, and this guide is not legal advice. Laws change and differ from state to state. If anything here is out of date or wrong, email support@malpracticeattorneys.com with the page name, and we’ll review it and update the page.