Veterans Affairs Medical Malpractice and Wrongful Death Lawyer
Philip McGrady has experience filing claims against the Veterans Affairs (“VA”) for the negligence of its professionals which leads to wrongful death. If your loved one was a veteran being treated by VA doctors or other health care professionals, you should contact a lawyer with experience in this field. You need a VA wrongful death lawyer, like Philip McGrady.
Pursuing a case under the Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”) bars a tort claim against the United States unless first presented to the appropriate federal agency “within two years after such claim accrues.” United States v. Kubrick, 444 U.S. 111, 113 (1979) (quoting 28 U.S.C. § 2401(b)). The federal statute, 28 U.S.C. § 2401(b) provides as follows:
“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”
28 U.S.C.A. § 2401(b).
Veterans Affairs Paid More Than $200 Million in Last Decade
According to one of the more thorough and informative articles available on the web, the VA has paid out roughly $200 million dollars to nearly 1,000 families since 9/11. Aaron Glantz, a reporter for The Center for Investigative Reporting, identified amounts paid throughout the United States after obtaining data from the VA using a Freedom of Information Act Request.
The median payment was identified as $150,000. However, a quick review of the cases indicated several in the range of $1 million. One case involving the Danville Illinois VA medical center appeared to be settled for $1,575,000. A case against the VA in Arizona resulted in a payout of $1,000,000. And a case in Utah was resolved for $950,000.
When pursuing a VA wrongful death claim, or any federal agency for a tort claim, it is important to know the unique procedural steps that must be followed. If you need the assistance of a lawyer with experience dealing with wrongful death claims against the federal government, contact the McGrady Law Firm.
Steps which must be followed when suing the Government
The claim must first be presented to the appropriate federal agency within two years of the claim’s accrual. 28 U.S.C. § 2401(b). A claim is deemed “presented” to a federal agency when the proper claim form (Standard Form 95) or other written notification is received by the agency:
“For purposes of the provisions of 28 U.S.C. § 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.”
28 C.F.R. § 14.2(a).
Once SF-95 is presented to the appropriate agency, the agency has six months to consider the claim, and if the agency has not acted within six months then the claimant has the option of deeming it a final denial and proceeding in court. You may lose a valid claim against the federal government if these requirements are not followed.
Overview of Damages available in Montana for Wrongful Death
Under Montana law (which is applicable as substantive law under the Federal Tort Claims Act), the personal representative of the estate of the deceased may sue the party responsible for wrongful death on behalf of the surviving heirs. The recovery made by the personal representative is not in his or her capacity as personal representative. Rather, the personal representative is the trustee of the award for each person entitled to compensation. Swanson v. Champion International Corp., 197 Mont. 509, 517-518, 646 P.2d 1166, 1170 (1982), citing MCA § 27-1-323.
“The law is not specific about the source of damages in a wrongful death action. It provides that ‘damages may be given as under all circumstances of the case may be just.’” Swanson, 197 Mont. at 517, 646 P.2d at 1170, citing MCA § 27-1-323. Generally, damages for wrongful death may include: 1) the loss of consortium by a spouse, by parents for the loss of minor and adult children, and by children for the loss of parents; 2) the loss of comfort and society of the decedent suffered by the surviving heirs; and, 3) the reasonable value of the contributions in money that the decedent would reasonably have made for the support, education, training and care of the heirs during the respective life expectancies of the decedent survivors. See, e.g., Swanson, 197 Mont. at 517, 646 P.2d at 1170.
The damages available in a wrongful death action for sorrow, mental distress or grief are an element of damages separate from loss of consortium damages; loss of consortium damages compensate plaintiff for loss of care, comfort, society and companionship of a decedent, whereas damages for grief and sorrow compensate plaintiff for mental anguish and anxiety which occurs as a result of decedent’s death. Mont. Code Ann. § 27-1-323; Bear Medicine v. U.S., 192 F.Supp.2d 1053, 1070 (2002).
Put another way, a Plaintiff’s wrongful death action allows for the recovery of damages for the mental anguish and anxiety that resulted from the person’s death. The loss of consortium action would allow the personal representative to recover damages for the loss of care, comfort, society, and companionship the deceased person had provided to the immediate family members in the past and would have continued to provide into the future. Indeed, Montana’s Wrongful Death Statute does not limit available damages and states that “such damages may be given as under all the circumstances of the case may be just.” Mont. Code Ann. § 27-1-323.
Therefore, a Plaintiff will generally be seeking the following categories of damages:
(1) Reasonable compensation as a result of the person’s death. The jury will consider any financial support which the Plaintiffs would have received or had a right to receive from the deceased except for the death, including the present value of his reasonable earnings during his life expectancy; and also the value of the society, comfort, guidance, education, care, protection, and companionship which the Plaintiffs have lost by reason of the person’s death. MPI2d 25.20.
(2) Reasonable compensation for burial expenses and funeral services for the deceased and any reasonable medical charges which were incurred in connection with the death. MPI2d 25.21.
(3) Reasonable compensation for grief, sorrow and mental anguish resulting from the death. MPI2d 25.22.
(4) Reasonable compensation to the Plaintiffs for damages suffered by the death if the death was not instantaneous. MPI2d 25.25. The Plaintiffs will be entitled to reasonable compensation for the present value of the deceased’s reasonable earnings after the date of death during the remainder of the decedent’s life expectancy; the medical and funeral expenses which were incurred as a result of the injury and death; reasonable compensation for the decedent’s conscious mental and physical pain and suffering in the interval between injury and death. MPI2d 25.25.
(5) Punitive damages which may be allowed provided the jury first finds that the Plaintiffs have suffered actual damage. MPI2d 25.61. Punitive damages may be awarded if the Plaintiffs suffered injury through the fraud or malice of another. MPI2d 25.61; see also MPI2d 25.63-25.66.
(6) Damages for infliction of emotional distress. MPI2d 15.01. Those damages include, but are not limited to, future wage loss and/or earning capacity; past and future medical expenses; physical and emotional pain and suffering; loss of enjoyment of life; and emotional suffering and distress, as well as, punitive damages in an amount which Plaintiffs’ trial jury seems just and fair under all of the circumstances.
(7) Damages for Loss of Consortium, which includes damages for the loss or impairment of the familial relations suffered by the Plaintiffs. MPI2d 25.32. This relation includes the right of support, aid, protection, affection and society. Id. The personal representative holds the proceeds of any damage award for the heirs of the decedent and the award does not become part of the decedent’s estate. Hern, ¶ 46.
This provides a general framework for damages available in a Montana wrongful death action, but you should contact an attorney with experience handling wrongful death claims to determine what damages you should seek.
Time is of the essence in Negligence cases against the Government
Timely compliance with § 2401(b) is a jurisdictional prerequisite. Fernandez v. United States, 673 F.2d 269, 271 (9th Cir. 1982); Blain v. United States, 552 F.2d 289, 291 (9th Cir. 1977). Federal rather than state law controls when the statute of limitations accrues for a personal injury action brought under the Federal Tort Claims Act. See, e.g., Poindexter v. United States, 647 F.2d 34, 36 (9th Cir. 1981). A plaintiff has a cause of action against the government under the FTCA if he also would have a cause of action under state law against a private person under like circumstances. 28 U.S.C. § 1346(b).
Although the FTCA does not define when a claim “accrues,” the Supreme Court has held that a plaintiff’s medical-malpractice claim accrues when he “knows both the existence and the cause of his injury.” Kubrick, 444 U.S. at 113.
You should contact an attorney like Philip McGrady to review your Veterans Affairs Wrongful Death case.
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