Not All VA Doctors Work for the VA: The Scope of Employment Problem in Military Medical Malpractice

One of the most confusing aspects of military and VA medical malpractice is determining who actually qualifies as a federal employee covered by the Federal Tort Claims Act. Veterans and military families reasonably assume that everyone providing care at VA hospitals or military treatment facilities works for the federal government. That assumption can be wrong, and it can destroy legal claims.

The FTCA only covers federal employees acting within their scope of employment. Contract physicians, temporary staff, and certain other providers at federal facilities aren't federal employees, which means the FTCA doesn't apply to them. Injured patients might need to pursue traditional state law malpractice claims against these providers individually.

In our practice, we regularly see situations where single surgeries involve a mix of federal employees and contractors. A VA surgeon might be a federal employee, but the anesthesiologist works through a staffing company. Surgical nurses might be federal employees while surgical techs are contractors. One operation, multiple providers, completely different legal frameworks depending on who caused the harm.

Determining employment status isn't always straightforward. We examine employment contracts, credentialing documents, and government certifications. Some physicians have hybrid arrangements—they're VA employees certain days and private contractors on others. If negligence occurred during a contractor shift, the FTCA may not provide coverage.

Military treatment facilities add additional complexity because they increasingly rely on civilian contractors, particularly for specialty services and after-hours coverage. Active-duty family members treated by these contractors might discover their FTCA claims fail due to employment status issues they had no way of knowing about during treatment.

Even clearly federal employees aren't covered if they acted outside their scope of employment. If a VA physician performs an unauthorized experimental procedure, or treats patients at a VA facility during off-duty hours for personal profit, they might not be within their scope of employment—meaning no FTCA protection applies.

For veterans and military families, this creates an impossible burden. They can't possibly know the employment status of every provider involved in their care. They assume federal facilities employ federal workers, which seems reasonable but isn't always true.

In our experience handling FTCA cases nationwide, employment status questions often require significant investigation. We review credentialing files, employment agreements, and government certifications to determine which legal framework applies. Sometimes we end up filing parallel cases—state court claims against contractors and FTCA claims against the government for related failures.

The scope of employment doctrine adds layers of complexity that veterans and families shouldn't have to navigate, but understanding these issues early can preserve legal options that might otherwise be lost.