Basic Elements of a VA Medical Malpractice Claim Under New Mexico Law

There are number of basic elements and requirement for a medical malpractice claim in New Mexico. Each of the elements below is set forth in New Mexico’s Uniform Jury Instructions. Each must be met or the claim will fail under New Mexico law.

Doctor Patient Relationship Required

There must be a doctor patient relationship. Without this relationship, there can be no medical malpractice claim against the provider. This requirement can on occasion get somewhat convoluted but for the most part it is pretty straightforward and the doctor patient relationship is clear.

Negligence Required

The medical provider must have been negligent. More to the point, the medical provider’s medical services must have fallen below the “standard of care”. The standard of care is a local standard governed by what is referred to as the locality rule. This means the medical provider is held to the standards in the particular field of medicine in the locality where the alleged negligent actions occurred. Specialists are held to a higher standard and must meet the standard of care established for each particular specialty.

Although general practitioners are not held to the higher standards of specialists, one very important requirement is that the medical provider refer the patient to a specialist when the need for a specialist in indicated. Likewise, this referral to a specialist must be made in timely manner. This in fact may be one very big issue for VA medical care in light of the delays in treatment.

The VA like any other New Mexico medical providers will held to both local and well defined national standards which have been adopted in the local medical community.

Medical Expert Opinion Required

Medical malpractice claims of every kind in New Mexico no matter who the defendant medical provider, medical malpractice claims require medical experts in a particular field of medicine that will testify that the defendant’s conduct fell below the relevant standard of care. In many cases, there may be the need for more than one medical expert.

An appropriate medical expert should be enlisted early in most cases. It is surprising how often medical providers of every stripe will deny wrongdoing even in the most outrageous and clear cases of medical malpractice. This means that the expert should be enlisted in most cases well before the commencement of litigation in anticipation of the fact that medical providers simply cannot accept or admit that they did something wrong no matter how clear it is to everyone else.

Need for Expert in Administrative Claim v. Lawsuit in Federal Court

An administrative claim under the Federal Tort Claims Act can begin and actually resolve without the necessity of medical experts. However, this would be pretty uncommon. On the other hand, a report from a medical expert will often help the case toward fair resolution at the administrative stage prior to filing a federal court lawsuit.

Once the lawsuit is filed, there are no exceptions, there must be a medical expert to support the patient’s contention of medical malpractice. Without an expert, the suit will be dismissed summarily by the federal district court judge (i.e. dismissed on the inevitable motion for summary judgment).

Injuries (Damages) Required

There are countless cases of medical negligence. In order to have a medical malpractice claims there must be not only negligence but injuries and damages caused by the negligence. These are referred to as damages in a lawsuit. There are a number of possible compensable damages including include physical injuries, permanence of injuries, past and future medical expenses, and past and future loss of income among others.

Fortunately, the great majority of instances of medical negligence result in little or no harm to the patient. If there is no harm or other damages to the patient, there may be a legitimate complaint against the provider but there is no medical malpractice claim.

Moreover, in cases resulting in little harm or damages, because of the time, expense and risks of medical malpractice claims it may be hard to find an attorney to take the claim. This is especially true in VA claims where attorneys must reduce significantly under the Federal Tort Claims Act.


Causation is a basic requirement of any personal injury claim, including medical malpractice. This means that the negligence caused the harm suffered by the patient. If the harm was the result of some other cause, then there is no claim. This can be a rather complex determination since there can be numerous contributing causes.

New Mexico follows the comparative fault doctrine. This means that if there are a number of causes, including the patient’s own actions, the fault will be apportioned between the various responsible parties. However, even with comparative fault, the injured patient must show that but for the alleged negligence, the injuries would have not occurred. In other words, the medical provider must have contributed to the injuries.

Beginning with that basic premise, the calculation of comparative fault will lie at the heart of the ultimate compensation to the patient and family. It can get rather complex but it is manageable regardless of the number of negligent parties and the degree of fault attributed to the patient.

Agent/Employee/Contractor of the Medical Provider (VA in this Case)

In order to sue the VA, it must be shown that the medical provider was the agent or employee of the VA. In most cases, this is clear since most medical services are provided in-house by VA employees and staff. Other cases can be slightly more complicated and may require a little sorting out in cases of third party medical contractors. The use of third party medical providers is fairly common so it is definitely something to keep in mind.

This should be relatively straightforward with the occasional complex case where the VA and/or the private medical provider are denying the relationship.

Seek Guidance from an Attorney in the State Where the Negligence Occurred

This is very important to keep in mind.  Medical malpractice laws and rules vary significantly from state to state.  It is important to find an attorney experienced in medical malpractice in the state where the medical malpractice occurred.  It is also important to find an attorney experienced with Federal Tort Claims due to the overlap of state and federal law.

For medical malpractice cases occurring in New Mexico, Collins & Collins, P.C. can be reached at (505) 242-5958.