Military Medical Malpractice: Understanding the Pre-litigation Requirements – For the Military – Ripka LLP

Military Medical Malpractice: Understanding the Pre-litigation Requirements

Military medical malpractice cases are unique—not only because they involve federal healthcare providers, but also because they’re governed by specific legal frameworks that differ significantly from civilian malpractice claims. If you’re a veteran, retiree, or military dependent seeking accountability for medical negligence, understanding the pre-litigation requirements is essential to moving your case forward.

This blog outlines what steps must be taken before a lawsuit can be filed under the Federal Tort Claims Act (FTCA), what makes military malpractice legally distinct, and how to prepare your case from the outset.

Why Pre-litigation Steps Matter in Military Malpractice

Medical malpractice in a military or VA setting often leads to life-changing consequences—misdiagnoses, failed surgeries, untreated conditions, or improper care. But before you can hold the government accountable in court, you must follow a specific legal process that begins long before any lawsuit is filed.

The FTCA mandates a formal administrative process that must be completed before you can pursue litigation. Skipping or mishandling this step can result in your case being dismissed outright, regardless of how valid your injury is.

Step 1: Determine Your Eligibility

Before anything else, it’s important to understand whether you’re legally allowed to bring a malpractice claim. Under the FTCA, you must be a civilian, dependent, veteran, or military retiree. Active-duty service members are generally barred from suing the federal government for injuries “incident to service” due to the Feres Doctrine.

However, once you’re no longer active-duty, that restriction may no longer apply. If your care was delivered by a federal employee at a military or VA facility, and you were harmed due to negligence, you may have a valid FTCA claim.

Step 2: Gather Medical Records

To initiate any claim, you need a clear record of what happened. That begins with obtaining:

  • Department of Defense (DoD) medical records 
  • VA treatment files 
  • Civilian medical records, if you sought a second opinion or corrective care 

This documentation will form the foundation of your claim. It helps establish the timeline of care, identify where errors occurred, and support the argument that medical negligence caused your injuries.

It’s also important to collect treatment summaries, diagnostic images, medication logs, and discharge paperwork—anything that could demonstrate a deviation from the standard of care.

Step 3: Get an Independent Medical Evaluation

Under the FTCA, proving negligence isn’t just about showing you were injured—it’s about showing that a qualified medical professional failed to meet an accepted standard of care.

That’s why it’s essential to have your case reviewed by an independent medical expert. This doctor will:

  • Review your complete medical file 
  • Identify whether negligence occurred 
  • Determine if the injury could have been prevented with proper care 
  • Draft a formal opinion to support your claim 

This expert report is not only valuable—it may be required in some jurisdictions before your case can proceed. It also helps establish causation, which is the legal link between the provider’s error and your current condition.

Step 4: File a Standard Form 95 (SF-95)

The SF-95 is the cornerstone of the pre-litigation process under the FTCA. It serves as your formal administrative claim against the federal government. You must file this form before you can take any legal action in court.

Key requirements include:

  • A detailed summary of the incident 
  • The names of involved providers or facilities 
  • A stated sum of money you’re seeking in damages (required) 
  • Supporting documents such as the expert report or medical records 

This form must be filed with the appropriate federal agency—usually the Department of Defense or the Department of Veterans Affairs.

Deadline: The SF-95 must be submitted within two years of discovering the injury. This is not a flexible window, and missing it can permanently bar you from recovering compensation.

Step 5: Wait for the Government’s Response

Once your SF-95 is filed, the agency has six months to investigate and respond to your claim. During this time, the agency may:

  • Review the claim internally 
  • Request additional documentation 
  • Offer a financial settlement 
  • Deny the claim 

If the agency does not respond within six months, or denies your claim, you then have the right to proceed to federal court.

Step 6: Only Then Can You Sue in Federal Court

If your claim is denied—or no decision is made within the six-month review period—you can file a lawsuit under the FTCA in U.S. District Court. However, this next phase of litigation is not automatic. You must:

  • File the lawsuit within six months of the agency’s denial or deadline 
  • Present expert medical testimony and evidence in court 
  • Prove that negligence occurred and caused your injury 

This is why getting your pre-litigation steps right from the beginning is so important. Courts expect your claim to be fully developed by the time it reaches litigation.

Why Pre-litigation Compliance Is Critical

Military malpractice cases are often dismissed not because of lack of evidence—but because pre-litigation requirements weren’t properly followed.

Common mistakes include:

  • Filing SF-95 with the wrong agency 
  • Failing to include a dollar amount in damages 
  • Waiting too long to file the claim 
  • Lacking an expert report 
  • Incomplete medical records 

Working with a knowledgeable military malpractice attorney helps prevent these costly errors and ensures your case is built on a strong legal foundation.

What Can You Recover?

If your claim is successful—whether through settlement or court ruling—you may be entitled to:

  • Medical expenses, including future care 
  • Corrective surgeries or therapy 
  • Lost income or employment potential 
  • Pain and suffering 
  • Loss of enjoyment of life 

While punitive damages are not allowed under the FTCA, compensation for long-term disability or serious harm can still be substantial.

Conclusion: Strong Cases Start With Strong Preparation

Military medical malpractice cases are complex, but not impossible. The pre-litigation phase—from record collection to SF-95 submission—is where cases are won or lost. Missing a step can delay justice or end your claim entirely.

At Khawam Ripka LLP, we understand the unique demands of military malpractice law. From helping you gather records to coordinating expert reviews and filing SF-95 properly, we guide you through every phase—so your case is built to succeed.

👉 Visit ForTheMilitary.com or call now to schedule a confidential consultation.
 Let us help you take the first step toward justice. Your service deserves accountability—and we’re here to make sure your voice is heard.

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Here at Ripka LLP, we are passionate about helping heroes in the military get the attention and financial compensation they, and their families, deserve.

If you or someone you love has been a victim of military medical malpractice, we would be honored to represent them and their family in their claim.

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