Again, the Federal Tort Claims Act requires that the administrative claims process be exhausted prior to filing a federal court lawsuit. This means that a claim must be filed first with the Office of General Counsels Regional Counsel Office in the VA region where the claim arose which can be found here along with instructions and forms on how to file a claim: http://www.va.gov/OGC/RCOffices.asp.
The deadline for filing the administrative claim is 2 years from the date of negligence or the date of discovery whichever applies under the circumstances. Failure to do so results in a bar to the claims.
It should be noted that the statute of limitations on VA claims applies to filing of the administrative claim.
Filing the Claim – Standard Form 95
The filing requirement is very easy to meet. The claim can be filed using a Standard Form 95. For claims arising in New Mexico, SF 95 would be filed with Regional General Counsel – Phoenix Office – Region 19. You can find the proper regional office at the VA Office of General Counsel website if you are not in New Mexico. You can also find forms and instructions on filing the Form 95 through their site.
Administrative Decision and Deadlines on Subsequent Lawsuit
These claims are often, if not routinely, denied. It is important to know when and what must happen next.
The VA Regional Counsel has 6 months to make a decision. If the VA does not make a decision within 6 months, the patient/family can move forward with the federal court lawsuit. Whether or not to do this is an important decision.
Likewise, if the VA denies the claim, the patient/family has 6 months from the date of denial to file a lawsuit. Failure to file within the 6 months will bar the suit.
Amount Claimed is the Limit of Recovery
One interesting aspect and possible trap under the FTCA is that the amount of compensation demanded in the Standard Form 95 is the limit of recovery. This means that you cannot raise the amount that you are asking later in a federal court lawsuit.
This means that you should err on the high side since you cannot later raise the amount if and when a suit is necessary.
Seek Local Counsel
It is very important that you seek the guidance of an attorney in the state in which the medical malpractice occurred. These claims are governed by both state and federal law. State laws vary widely for medical malpractice claims and strongly suggest the guidance of an attorney experienced in the state where the negligence occurred and in Federal Tort Claims.
For claims occurring in New Mexico, Collins & Collins, P.C. can be reached at (505) 242-5958 .