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

There are several essential elements and requirements for a medical malpractice claim in New Mexico. Each piece below is outlined 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 occasionally 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 criteria 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 care standard established for each specialty.

Although general practitioners are not held to the higher standards of specialists, one essential requirement is that the medical provider refers the patient to a specialist when the need for a specialist is indicated. Likewise, this referral to a specialist must be made promptly. This may be one huge issue for VA medical care in light of the delays in treatment.

Like any other New Mexico medical provider, the VA will be held to local and well-defined national standards adopted in the local medical community.

Medical Expert Opinion Required

Medical malpractice claims in New Mexico, no matter who the defendant’s medical provider is, 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 a 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,g even in the most outrageous and clear medical malpractice cases. This means that the expert should be enlisted in most cases well before the commencement of litigation in anticipation that medical providers 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 resolve without medical experts’ necessity. 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 before filing a federal court lawsuit.

Once the lawsuit is filed, there are no exceptions; a medical expert must 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. To have a medical malpractice claim, there must be negligence, injuries, and damages caused by the failure. These are referred to as damages in a lawsuit. There are several possible compensable damages, including physical injuries, the permanence of injuries, past and future medical expenses, and history 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 damage to the patient, there may be a legitimate complaint against the provider, but no medical malpractice claim exists.

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 share. This is especially true in VA claims, where attorneys must reduce significantly under the Federal Tort Claims Act.


Causation is an essential requirement of any personal injury claim, including medical malpractice. This means that the negligence caused harm suffered by the patient. If the damage resulted from another cause, then there is no claim. This can be a somewhat complex determination since numerous contributing reasons exist.

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

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)

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 issues can be slightly more complicated and may require a little sorting out in cases of third-party medical contractors. Using third-party medical providers is relatively common, so it is something to keep in mind.

This should be relatively straightforward, with the occasional complex case where the VA and the private medical provider deny 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 essential to find an attorney experienced in medical malpractice in the state where it occurred. It is also necessary to find an attorney experienced with Federal Tort Claims due to the overlap of state and federal law.

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

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