The Difference between Federal Tort Claims and VA 1151 Claims

“The VA is responsible for my low back injury – what options do I have?” If a veteran suffers injury or death as a result of VA healthcare, VA vocational rehabilitation, or participation in a VA Compensated Work Therapy (CWT) program, two main avenues of relief are available: Federal Tort claims and Section 1151 claims.  

The Federal Tort Claims Act (FTCA) allows veterans, survivors, or their estate to pursue a medical malpractice claim against VA. Alternatively, 38 U.S.C. § 1151 allows veterans to apply for VA disability compensation for injuries incurred through negligent care at VA. While these two claims can address similar situations, they differ in scope and process. 

Federal Tort Claims 

A Federal Tort Claim is a lawsuit filed directly against VA for negligence by VA employees. For example, if a VA doctor fails to follow appropriate medical standards and causes injury, or if a VA employee leaves a hazardous object on the ground, resulting in injury, veterans may be able to pursue a Federal Tort claim. 

• Eligibility: Any negligent act by a VA employee, not just medical personnel, can be the basis of a Federal Tort claim. 
• Compensation: Compensation in a Federal Tort case is awarded as a lump sum for economic and non-economic damages, such as medical expenses, lost wages, and pain and suffering. 
• Burden of Proof: To succeed, veterans must show a preponderance of evidence that VA’s negligence caused the injury. This standard is higher than that required for Section 1151 claims, making these cases more challenging to win. 

Important Considerations: Federal Tort claims are civil lawsuits, and if resolved in favor of the veteran, the damages are part of the veteran’s estate and can be passed on to others. 

VA Section 1151 Claims 

A Section 1151 claim is a request for VA disability compensation due to injury or death caused by negligent medical treatment, vocational rehabilitation, or participation in VA CWT programs. Unlike Federal Tort claims, Section 1151 claims are VA disability compensation claims, not lawsuits, and have a narrower scope. 

• Eligibility: Section 1151 claims require evidence that the injury or death was caused by “carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault” in the administration of VA medical care or by “an event not reasonably foreseeable.” This applies only to medical care, treatment, or examination received at a VA facility. 
• Compensation: Successful Section 1151 claims result in disability benefits as if the injury were service-connected. This means the condition will be rated according to VA disability rating schedules, and the veteran will receive monthly compensation based on that rating. 
• No Lump Sum: Compensation for Section 1151 claims is paid monthly, unlike the lump sum awarded in Federal Tort claims. 

If you’ve been injured due to VA negligence, our team is here to help. Contact us for a free case evaluation. 

Filing Both a Federal Tort Claim and a Section 1151 Claim 

It is possible to file both a Federal Tort claim and a Section 1151 claim for the same injury. However, winning both cases does not result in double compensation. 

If a veteran wins a Federal Tort claim and is later awarded Section 1151 benefits, VA is required to offset the amount of Section 1151 benefits by the total amount of the Federal Tort judgment, settlement, or compromise. This means VA will withhold monthly payments for Section 1151 benefits until the total amount withheld equals the tort compensation received. No double recovery is allowed for the same injury. 

However, there are exceptions to this rule: 

• Court Orders: If a court order prohibits an offset, and VA does not appeal the decision, the offset may not apply. 
• Estate Claims: If the Federal Tort settlement is paid to the veteran’s estate (such as through a surviving spouse acting as an administrator), the offset rule may not apply. This only applies if the settlement is paid to the estate and not to an individual for personal loss. 

Key Differences and Considerations 

• Scope: Federal Tort claims cover a broader range of negligence, while Section 1151 claims are limited to medical treatment, examination, or participation in vocational rehabilitation or CWT programs. 
• Compensation: Federal Tort claims result in lump sum payments; Section 1151 claims result in monthly compensation based on VA disability ratings. 
• Burden of Proof: Federal Tort claims require a preponderance of evidence, making them more difficult to win than Section 1151 claims, which require a lower standard of proof. 
• Double Recovery: Veterans cannot receive both lump-sum tort compensation and monthly Section 1151 benefits simultaneously for the same injury. 

Both Federal Tort claims, and Section 1151 claims offer pathways for veterans to seek compensation when injured due to VA’s negligence. However, these claims differ in scope, compensation, and the evidence required. Veterans seeking compensation for medical malpractice or injuries caused by VA should carefully consider their options and may benefit from consulting a legal expert to determine the best course of action. 

Contact us for a free case evaluation to understand your rights and options for pursuing a Federal Tort claim or Section 1151 benefits. 

Content Reviewed by

Cassandra Crosby

Cassandra, an Accredited Agent and claims advocate for Matthew Hill & Shelly Mark’s teams, reviewed the information provided in this post.