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M-VETS Clinic Files Amicus Brief in VA Malpractice Case

The Antonin Scalia Law School Mason Veterans and Servicemembers Legal Clinic (M-VETS) filed an Amicus Curiae brief together with the Baylor Law School Veterans’ Assistance Clinic (“Baylor Clinic”) in an effort to increase available avenues of justice for veterans seeking redress in medical malpractice claims against the Department of Veterans Affairs’ (“VA”).

M-VETS Clinic
M-VETS Clinic Meeting

M-VETS and the Baylor Clinic filed the brief in support of the petitioner in Milbauer v. United States of America, which is on petition for writ of certiorari before the United States Supreme Court. The case will resolve a split among the United States Circuit Courts as to whether the Veterans’ Judicial Review Act (“VJRA”) bars federal districts courts from hearing VA medical negligence suits arising under the Federal Tort Claims Act (“FTCA”).

The Petitioner, Richard Milbauer, brought suit against the VA after the failure of VA physicians to recommend and perform alternative diagnostic procedures rendered a treatable shoulder injury permanent. The Eleventh Circuit held that the federal courts lacked jurisdiction over Milbauer’s claim based on a broad reading of the VJRA’s prohibition on judicial review of any VA decision affecting “the provision of benefits” to veterans.

“This issue is extremely important to our military veterans seeking redress in cases of medical negligence against the VA,” Leigh Winstead, M-VETS staff attorney said. “The split among the Circuits creates uncertainty for veterans who have been harmed by the decisions of VA medical staff and desire to pursue damages under the FTCA.” Winstead said. “It is imperative that the Supreme Court clarify the confines of the VJRA’s jurisdictional bar to ensure that appropriate legal remedies are available to our veterans.”

M-VETS and the Baylor Clinic were represented by the international law firm of Reed Smith LLP in filing the brief. Both clinics provide active-duty members of the armed forces, their families, and veterans with free legal representation in matters of clear injustice or where they cannot retain counsel without undue hardship.”