Frequently Asked Questions

Frequently Asked Questions2020-08-31T14:52:29-05:00
Can Active-Duty Military Service Members Sue the United States Army, Navy, or Air Force?2020-09-02T09:01:48-05:00

For the past 70 years, the short answer to this question has been no. But for the first time, active duty military service members can bring a claim against the government under the Military Claims Act for injuries suffered as a result of medical malpractice.

How do I sue the VA?2020-08-31T14:51:34-05:00
How do I sue a military hospital for medical malpractice?2020-08-31T14:51:34-05:00
Can I sue the VA, Army, Navy, or Air Force?2020-08-31T14:51:34-05:00

Yes, the VA, Army, Navy, or Air Force can be sued in certain circumstances. Read on for our full in depth article on this topic.

If you are injured by the U.S. Government, can you sue?2020-07-31T08:59:09-05:00

Our firm handles a wide range of medical malpractice and personal injury cases against the United States Government. We often represent military (Army, Navy, and Air Force) service members or veterans, but our firm represents anyone who has been injured by the U.S. Government. Read on for our full blog article on the topic.

Medical Malpractice Dos and Don’ts2020-07-31T08:48:28-05:00

Wondering what you should and shouldn’t do regarding your medical malpractice case? Read on for our full blog article on the topic.

How will Coronavirus impact my case?2020-09-02T08:50:23-05:00

Because of the COVID-19 pandemic, we are conducting much of our business virtually, by telephone and teleconference but this has not limited our ability to represent our clients.  Courts are making different decisions on whether or not to hold proceedings in person, hold them remotely (hearings and trials) or postpone proceedings. Your attorney will keep you informed of developments in your case. We are actively taking depositions and holding hearings across the country via video conference and have continued to advocate for our clients and reach settlements during the pandemic. It’s important to remember that FTCA statutes of limitations have not been tolled or postponed due to COVID-19. It is safest to assume that any state statutes of limitations have not been tolled either.

To which federal and state courts are Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham and Jacob, PLLC attorneys appointed?2020-09-02T08:52:17-05:00

The attorneys at Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham and Jacob, PLLC affiliate with local counsel all over the country. If we are not already admitted to practice before the jurisdiction where your case will be filed, we will affiliate with local counsel. Our lawyers have the following bar admissions and court appointments:

  • United States Supreme Court
  • Texas Supreme Court
  • State Bar of Texas
  • State Bar of California
  • The United States District Courts
    • Northern District of Texas
    • Southern District of Texas
    • Eastern District of Texas
    • Western District of Texas
    • Northern District of California
    • Middle District of Tennessee
    • Southern District of Illinois
    • Northern District of Florida
  • United States Court of Appeals for the First Circuit
  • United States Court of Appeals for the Fourth Circuit
  • United States Court of Appeals for the Fifth Circuit
  • United States Court of Appeals for the Sixth Circuit
  • United States Court of Appeals for the Ninth Circuit
  • United States Court of Appeals for the Tenth Circuit
Do you offer a free consultation?2020-07-30T14:23:47-05:00

We offer a free telephone consultation. During this call, one of our trained medical malpractice intake specialists will review the details of your case with you and gather information to help us evaluate your case. This information goes directly to one of our attorneys for additional review.  There is no charge for this evaluation.

What do you charge clients?2020-07-30T14:23:14-05:00

Medical malpractice cases are not like most other lawsuits. Instead of requiring our clients to pay us in advance, we work on a contingency fee basis.  This means there are no prepaid costs to you. We advance the costs of your case and if we win the case or negotiate a settlement, our fee is a percentage of the recovery we get for you.  At this time, we are also reimbursed for our out-of-pocket costs to pursue the case. If you don’t receive a recovery, you pay nothing.

Where is your law firm located and do you travel to cases?2020-07-30T14:21:24-05:00

The attorneys at Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham and Jacob, PLLC are located in the greater Austin, Texas area.  Our team travels across the United States as needed to secure the best results for our clients. We have filed lawsuits and tried cases in a number of states coast to coast, from Washington and  California, to Texas and Oklahoma and New Hampshire, Kentucky, Tennessee, Mississippi, Florida,

What happens after an FTCA claim is presented?2020-08-31T14:51:34-05:00

After an FTCA claim is presented with a Standard Form 95, the government has a minimum of six months to determine whether or not the claim is valid. Often the administrative claims process takes much longer than six months to result in a settlement.

What is the Military Claims Act (MCA)?2020-08-31T14:51:34-05:00

The Military Claims Act (MCA) allows active duty service-members  to recover damages from the federal government for injuries, wrongful death, medical malpractice or damage to their personal property that are caused by military personnel, so long as the injury was the result of non-combatant military activities. Unlike the FTCA, the MCA covers damages that occur anywhere in the world. Civilians who are injured overseas on military bases may also bring MCA claims.

Can victims and families sue for injuries or wrongful death that occur outside of the United States ?

Only administrative claims can be presented under the Military Claims Act for injuries sustained overseas on military bases. Lawsuits cannot be filed for overseas injuries.

Can the family sue the military for wrongful death?2020-08-31T14:51:34-05:00

Yes, a family can sue the federal government for wrongful death if that death is caused by the negligence of an agent of the United States Government if the victim of malpractice was not active duty at the time of the negligence, after first presenting an administrative claim for damages against the appropriate federal agency. If the malpractice victim was active duty at the time of the negligence, and the provider was a military provider or federal employee, the only remedy is to present an administrative claim under the Military Claims Act.

What if the provider was a contractor, volunteer or board member and not a federal employee?2020-08-31T14:51:34-05:00

The FTCA applies to injuries caused by any employee or agent of the federal government who is acting within the scope of their responsibility when the injury occurs.  If one of your health care providers turns out not to be a federal employee, you may need to file suit against them individually in state court.  If both federal employees and independent contractors were involved in your medical malpractice, you may have a hybrid case that requires suing both the federal government and individual providers.

What about claims against federally supported clinics and free clinics?2020-08-31T14:51:34-05:00

How do I know if the clinic was federally funded?

If injured while at a federally funded clinic, a civilian can sue the federal government under the FTCA, if they have first exhausted all other administrative remedies.  Any clinic that receives funding from the U.S. Department of Health and Human Services is federally funded.  This means that anyone who has been injured at one of the facilities must seek a remedy under the FTCA.

Where should the lawsuit be filed?2020-09-02T08:54:19-05:00

In general, a medical malpractice lawsuit should be filed in the jurisdiction where the injury occurred. Depending on the circumstances of your case, you may have options on venue and it may be advantageous for you to file suit in a federal court or in one particular state court versus another.  Your attorney will help you determine the best venue for your particular case.

If the medical malpractice was committed in a military or veteran’s hospital or in a federally funded clinic, you must pursue a remedy from the United States Government by filing an administrative claim under the Federal Tort Claims Act first before you can file suit.

What is the difference between state civil suits and federal medical malpractice?2020-09-02T08:57:10-05:00

If you have been injured by an agent of the federal government (for example a worker in a military hospital or a federally funded clinic), your only method of redress is to pursue a claim under the Federal Tort Claims Act or the Military Claims Act.  If the U. S. government is not the plaintiff, your case will probably be filed in a state court, however, in some situations, a federal court may be an appropriate venue for this type of medical malpractice lawsuit as well.

Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham and Jacob, PLLC handles FTCA and Military Claims Act cases anywhere in the U.S. and represents clients in medical malpractice cases heard in Texas and California courts.

How common is medical malpractice?2020-07-30T15:45:52-05:00

When you consider the number of provider-patient interactions that take place every day, medical malpractice is relatively uncommon.  That being said, a recent Johns Hopkins study claims more than 250,000 people in the U.S. die every year from medical errors. Other reports claim the numbers to be as high as 440,000. Malpractice can occur during surgery, childbirth, in the administration of anesthesia or medication, during diagnosis of a disease, at a clinic or in the hospital.

How long does it take to settle a malpractice suit?2020-07-30T12:13:33-05:00

The pursuit of a medical malpractice case can be a lengthy process.  There are many steps including consulting with an attorney, evidence gathering, hiring experts, presenting administrative claims, and if the case moves into filing a lawsuit in federal court, there will be court filings, discovery, expert designations, depositions of parties, treaters and expert witnesses, negotiations, mediation, and possibly a trial.  Cases that are settled before suit is filed can take anywhere from six months to a year on average.  If your case goes to trial, it will probably take twice that long, and maybe longer if the trial judgment is appealed.

Many plaintiffs prefer to reach a settlement because it resolves the case more quickly and avoids the inconvenience and expense of a lengthy trial.  Recounting the details of a medical injury or wrongful death in front of a courtroom full of people is a painful experience that most prefer to avoid.

What’s the average payout for medical malpractice?2020-09-02T08:58:37-05:00

Medical malpractice lawsuit payouts vary greatly depending on the circumstances.  The vast majority of medical malpractice lawsuits that result in compensation are resolved outside of the courtroom, with a financial settlement. The settlement amount is determined through negotiations between the plaintiff and defendant(s) (through their attorneys) and is based on economic losses caused by the plaintiff’s injuries, plus any agreed compensation for non-economic damages which include things like emotional pain and suffering, mental anguish, impairment, and disfigurement.

It is important to note that many states have caps on the amount of non-economic damages in medical malpractice cases. Those state caps do apply to FTCA cases.  For example, in Texas, non-economic damages in medical malpractice cases are capped by law, as follows:

  • $250,000 for all doctors or health care providers other than a health care institution (like a hospital);
  • $250,000 against a single health care institution;
  • $250,000 for each additional health care institution.

It is very rare for cases to involve more than one health care institution. Most of the time, the non-economic damage cap in a given medical malpractice case is either $250,000 or $500,000 total.

In FTCA cases, state substantive law will apply to your claim, including state caps on medical malpractice cases.

What’s the difference between medical malpractice and medical negligence?2020-09-02T09:00:34-05:00

Legally, the terms “medical malpractice” and “medical negligence” are the same. If a health care provider does something that a reasonably prudent health care provider in the same or similar circumstances would not have done, or doesn’t do something that a reasonably prudent health care provider in the same or similar circumstances would have done, the action or inaction of that health care provider may rise to the level of malpractice, or negligence.

An example is a doctor who fails to diagnose cancer in a person who has cancer, despite knowing about signs and symptoms that were consistent with cancer. Another example would be a doctor who does not deliver a baby in a timely manner despite the fact that the baby’s heart tracings on a fetal monitor strip are non-reassuring for a period of time.

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