There are numerous misconceptions surrounding the right of veterans and families to sue the VA for medical malpractice claims. Below are 5 that seem to be most common. There are certainly others that arise on a case by case basis which is just one of many very good reasons to seek legal guidance in the state in which the medical malpractice occurred.
Misconception #1: Feres Doctrine – No Right to Sue?
First, and most harmful to a veteran and family, is the misconception that a veteran and/or family member has no right to sue the VA at all for medical malpractice. It is not clear why this is so commonly misunderstood.
Perhaps, it arises from the draconian Feres Doctrine which veterans no doubt learned about while in the military. The Feres Doctrine is a grossly unjust rule that prevents active military from suing military hospitals for medical malpractice. Keep in mind that the Feres Doctrine applies only to active military personnel, not their families. This means that spouses and children can sue a military medical provider under the Federal Tort Claims Act.
Moreover, make no mistake, the Feres Doctrine does not apply to veterans or family members under VA medical care. Veterans can sue. Family members can sue on behalf of veterans. Family members can sue on their own behalf for negligent medical care provided to the family member.
Misconception #2: Family Members Cannot Sue the VA
As mentioned, this is also incorrect. Family members can sue the VA in a number of capacities.
First, a family member can bring a claim on behalf of an injured or deceased veteran. In both cases, there a number of steps that would need to be taken. In case of an injured veteran, the family member could sue as the conservator which requires an appointment through the state courts. In the case of a wrongful death claim, the family member could sue as the personal representative of the veteran’s estate. This again would involve the state courts requiring the appointment of the family member as personal representative under the New Mexico Wrongful Death Act. Each of these requires legal procedures that would suggest obtaining the services of an attorney. There are essential steps to filing a wrongful death claim. It is important to carefully and fully understand and abide by the requirements under the New Mexico Wrongful Death Act.
Second, the family member can sue on his or her own behalf, or on the behalf of a child negligent VA medical care. In case of injury, this is fairly straightforward. The family member would file in his or her own name or as the parent of a child. In case of wrongful death, the family member would again need to be appointed personal representative of the child’s estate under the Wrongful Death Act. Wrongful death claims have unique requirements, it is important to understand and follow the necessary steps for initiating a claim.
Misconception #3: Only a Family Member Can Sue on a Veteran’s Behalf
This is again incorrect. A veteran, living or deceased, has the same legal rights as any other patient. Folks other than family members can fulfill the same roles set forth above as conservator or personal representative. This may be necessary for any number of reasons that need not be stated here.
In any event, it is very important to understand and carefully follow the rules regarding the filing of claims on behalf of non-family members.
Misconception #4: Definition of VA Medical Care
The definition of what constitutes VA medical care seems to be widely misconstrued as well. The bottom line is that the VA Healthcare System is vast. The VA doesn’t just have hospitals and clinics. It has medical and mental health clinics, substance and alcohol abuse treatment programs, a wide spectrum of services addressing mental health issues and community-based supportive services for combat veterans (Vets Centers) and family supportive services. Harm suffered under the medical care of any of the various programs could give rise to a medical malpractice suit.
There are additional complications as well. The VA is heavily reliant on outside medical providers for a vast array of medical services. The involvement and negligence of these outside parties can complicate things. In short, it is important to identify these providers and to name them in any lawsuit along with the VA.
Misconception #5: Medical Malpractice Claims are Easy
Medical malpractice claims are widely and wildly misunderstood by the public. This is based upon the grossly distorted myth of an epidemic of frivolous medical malpractice claims. Without belaboring the issue, it is estimated that as many as 440,000 patients die each year in U.S. hospitals from preventable medical error. The fact is that a very tiny fraction of these result in any kind of claim. A tiny fraction of these result in compensation to the patient or family.
The fact is medical malpractice claims are extremely difficult, expensive and risky for lawyers to take on. As a result, attorneys must screen these very carefully on the presence of malpractice as well as the degree of harm suffered by the patient and/or family.
This issue is particularly problematic in VA claims for one very significant reason. The Federal Tort Claims Act strictly limits the attorney fees on claims against the federal government including the VA. These fee restrictions limit the fees to about one-half of the typical attorney fees for medical malpractice claims
The fee restrictions are purportedly for the protection of injured folks against the “greed” of their lawyers. In fact, it is simply a way of keeping them out of the courthouse to begin which means many valid claims will never be heard unless the victim pursues the claim on his or her own which is challenging to say the least.
For New Mexico based medical malpractice claims against the VA, Collins & Collins, P.C. can be reached at (505) 242-5958 .