Considering an FTCA Claim? Client Do's and Don'ts

Your actions before coming to a medical malpractice attorney or VA malpractice attorney can sometimes make or break your Federal Tort Claims Act (FTCA) medical malpractice case. Here are a few things you should do, and NOT do, before you even contact an attorney.

DO’S:

·         DO gather all military and private medical records related to, and following, the incident. Any law firm that you hire will need to review medical records related to the injury from the military or VA hospital where the injury occurred and from private clinics, rehabilitation centers, or personal physicians. These records are necessary to evaluate and prove any military medical malpractice or VA medical malpractice case.  It is usually easier for a patient to obtain his/her own records from these facilities before a law suit has been filed. Before contacting an FTCA attorney, you should collect all the relevant medical records from any government or private facilities. In addition, it is helpful to make a list of the names of all relevant medical providers even if you haven’t obtained the records yet. 

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DO locate the last five years of income tax records, W-2 forms, and pay stubs of the injured person. The law requires each claimant to submit proof of any lost wages or the loss of earning capacity, which will be based in part on your past earnings.  Summarize your work history and your educational background if you don’t have a current resume.  If the victim of medical malpractice is a child, gather this information for both parents of the child.  If the victim is retired, gather information on retirement or disability benefits.

·         DO gather family photos & video tapes from before and after the incident. In any military medical malpractice case or VA medical malpractice case, we must prove that the negligence of the VA or the military caused the claimants severe harm. Family pictures and video tapes from before and after the injury are helpful because they show just how much the medical malpractice has changed your life.    All originals will be returned to you, or you can provide copies to us.

·         DO obtain copies of birth certificates for all claimants and marriage certificates for any married claimants.   Sometimes these documents are required before a claim can be settled, to prove claimants are related.

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If victim is deceased, DO have a court appoint an administrator of the estate. When filing a wrongful death case, it is necessary to have the proper legal authorization to represent the deceased person or the estate in an FTCA case. This can easily be done through a lawyer specializing in wills and estates in your area.

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If victim is deceased, DO obtain a copy of the death certificate, autopsy report, and will (if one exists).  These documents sometimes play an important role in showing the cause of death.

DON’T's:

·         DO NOT blog, email, or post notes on social network sites about your case. This may be the most common way that a client can hurt their own case.  Anything you write or say about the case can be used against you by government attorneys. Comments made to friends or pictures on sites such as Facebook or MySpace may be used to discredit your case. Even web pages on a private setting are not necessarily secure, and may still be discoverable by the government’s lawyers.  Many people are not careful about what they write on the web and even a casual remark reassuring a friend that you are “doing okay after the injury” can be used to undermine your claim.  While it may be tempting to share news with family and friends about an ongoing illness or injury through websites like Caringbridge.org, avoid posting any details about the incident or ongoing treatment.  The one exception to this rule is that you should feel free to correspond via email with your lawyer because any private correspondence with your lawyer is considered privileged communication.   

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DO NOT vent or argue with providers about what went wrong, especially in writing. Any correspondence or emails with the military hospital or VA hospital, doctors or military officials can hurt you in the long run. Other than obtaining medical records from the custodian of records, avoid any discussion about the case, your opinions about the hospital staff, or what you think may have been the cause of the injuries.  If the hospital or provider wants to hold a meeting to discuss the incident, attend these meetings but do not vent, argue, or reveal any information.  Simply listen, and thank the providers for their time and take notes afterwards about the conversation. 

·         DO NOT throw away or permanently mark on any medical records. Your medical records are essential evidence in your medical malpractice case. Do not deface them in any way with markers, highlighters or pens. If absolutely necessary, you may feel free to use sticky-notes to communicate information to your FTCA lawyer.

·         DO NOT miss any doctor’s appointments. Your actions as a patient will be scrutinized by the government lawyers in an effort to find fault with your behavior or minimize your injuries. It is critically important that you properly follow your physician’s instructions and do not miss any postinjury appointments. Your attendance to physical therapy sessions, or regular checkups can have a significant impact on the amount of damages that you may be awarded.  If the judge does not believe you will attend appointments, it will be hard to convince him/her that damages for future medical care should be awarded or that you have a serious injury.

·         DO NOT  file a grievance with the state board of medical examiners until you have contacted a lawyer.  Your lawyer may advise you to wait until your claim is settled or your trial is over before a state investigation begins.   Sometimes these investigations cause private doctors to refuse to consent to settlement of private claims.  Until you hire an attorney, you cannot be sure that the provider in your case is a government employee.

·         DO NOT WAIT to contact a lawyer specializing in the FTCA. Most medical malpractice claims filed under the Federal Tort Claims Act have a Statute of Limitations of two years. If you miss that deadline, your claim is forever barred.  Also, an attorney will need time to evaluate and build your case. This process can take a few months, so it is important you contact a lawyer as soon as you suspect medical negligence may have occurred.