My husband was injured in Iraq in 07, had his first back surgery in 08 & was fine until 2010 when the pain came back. In 2013 neurosurgeon said he needed a fusion, after the first 4 weeks post op the pain came back a lot worse, dr tried tellig him there is nothing wrong and it was in his head ( PTSD from Iraq) had 2 more spinal injections after surgery pain is still extreme, come to find out he may have Arachnoiditis, once I seek a second opinion & get a diagnose from another Dr other than the VA, can we file a lawsuit for negligence or malpractice?
Can a veteran file a claim for injuries suffered as a result of malpractice at the VA? Yes. There are two potential avenues of recovery. If the physician was an "independent contractor" and NOT a federal employee then that physician can usually be sued under the laws of the state where the treatment occurred. If the negligent doctor or health care providers WERE federal employees, then you cannot sue in state court, you must bring a claim under the Federal Tort Claims Act.
I do not know the law regarding medical malpractice in SC, but there are most certainly deadlines to file a claim in state court.
Under the Federal Tort Claims Act, however, you have to file Form 95 within two years from the date you knew (or should have known) that malpractice injured your husband. Once that form is filed, the U.S. has six months to either pay your claim or deny it. If they deny the claim, or if six months passes without a response, you can file suit in Federal Court.
The more complicated question is whether or not your husband's Arachnoiditis was caused by negligence. That can only be answered by a qualified physician who has the time to conduct a thorough review of your husband's medical records and radiology studies. Arachnoiditis can certainly be caused by improper medical care. Some surgeons, however, will say that it can result from surgery even if the surgeon provided perfect medical care.
Feel free to contact me if you have any further questions.
I am fairly certain that if it was a combat injury the federal government is immune from being sued for negligence. You would have to consult a medical malpractice attorney to determine whether any malpractice was committed. You fact pattern does not give enough background for a proper evaluation on that issue. Good luck!
Without further facts and details it is not possible to evaluate this case to determine if you have grounds for a successful medical malpractice claim.
Medical malpractice claims are complex and highly fact specific. In order to prosecute a malpractice claim you must show that there was a deviation from the standard of care which caused your husband's damages. You could gather your husband's medical records and have them evaluated to see if the failure to diagnosis the Arachnoiditis was a deviation from the standard of care. Without further facts and details, it is not possible to say for certain you have a viable claim.
A malpractice claim for an improper diagnosis would be a difficult claim to pursue unless you were able to establish that the missed diagnosis caused injury or damages that would not have occurred otherwise. In your situation, based on the information you have provided, it seems as though the pain and discomfort were caused by the 2007 injury in Iraq, not the 2013 misdiagnosis. It also appears that your husband's problem was properly diagnosed at some point thereafter, although the Aracnoiditis diagnosis seems unconfirmed based on your question. Your best bet would be to get a confirmed second opinion on your husband's condition, along with some indication from the second doctor that the previous misdiagnosis caused your husband additional injury. If the second doctor says that further injury could have been avoided with a correct prior diagnosis or earlier treatment, the potential case would be greatly strengthened.
