In any medical malpractice claim, deadlines are critically important. It is no different in claims against the VA. This is the first important distinction between claims against the VA and claims against private medical providers.
Statute of Limitations is Only 2 Years Under the Federal Tort Claims Act (FTCA)
Again, claims against the VA are governed by the FTCA. The most important requirement under the Federal Tort Claims Act is the 2 year statute of limitations. This is significantly shorter than the 3 year statute of limitations on New Mexico medical malpractice claims against private medical providers.
This means that a claim must be filed within 2 years or it will with very exceptions be barred completely. There are a number of finer points to the statute of limitations that must be understood by patients and their families: the Administrative Claims requirement under the FTCA and the Discovery Rule which governs the date that the statute of limitations begins to run on New Mexico medical malpractice cases.
The Administrative Claim Requirement
Under the FTCA any legal claim against a federal governmental entity including the VA must begin with an administrative claim with the agency in question. This should not scare off a patient or family. It is a rather simple requirement to meet and can actually benefit the patient/family possibly avoiding the time and expense of moving forward with a protracted, stressful and expensive lawsuit in federal court.
In short, the patient/family must file a claim with the proper VA entity. The claim must be filed with the Office of General Counsel for the VA region in which the case arose. For New Mexico, this is the Phoenix office which you can find here along with all other regional offices: http://www.va.gov/OGC/RCOffices.asp. You can also find useful information and forms necessary for filing a claim with the VA.
The patient/family must exhaust the administrative claims process before filing suit. This means filing the claim with the Office of General Counsel and awaiting the decision. Failure to do so will result in dismissal of the claims by the federal district court judge. The administrative claims process will be discussed in greater depth below at section 6.1.
The Discovery Rule
The “discovery rule” in New Mexico medical malpractice claims, including claims against the VA, is critically important to the rights of patients and families harmed by medical negligence. Not all states follow the discovery rule. New Mexico does which means the statute of limitations on any claim arising in New Mexico will be governed by the discovery rule.
The discovery rule, in a nutshell, means that the statute of limitations will not begin to run until the patient knew or should have known of the medical negligence. This is crucial to the rights of patients and families harmed by medical negligence since without the discovery rule, the statute of limitations can and often does run before the patient is ever aware of the medical negligence (think failure to diagnose cancer).
In sum, the discovery rule applies in New Mexico based VA medical malpractice claims so that the statute of limitations does not begin to run until the patient knew or should have known of the medical negligence. This determination can get a little bit complicated particularly under the “should have known” prong. It is important to understand and identify the relevant dates.
Fraud and Concealment
There are a few very bad actors in medical care. These folks will actively conceal medical errors. This is so even in cases where concealment can lead to catastrophic harm and even death to a patient. This is actually quite rare. However, in the case of the VA, the problem may be much worse.
This is the result of the findings of systemic neglect within the VA medical system. This is not necessarily or even often the result of individual medical providers behaving badly. Rather it is at the administrative level where it has been found that there are huge delays in treatment, wait times are falsified and worst of all medical records are falsified, including falsifying women’s refusal of mammograms.
In any of these cases, the rules on fraud and concealment as well as the discovery rule would toll the statute of limitations until the patient or family knew or should have known of the medical negligence.
Seek Legal Guidance in the State Where the Medical Malpractice Occurred
Each state has its own laws regarding the discovery rule, and fraud and concealment of medical malpractice. The sad fact is there are states that do not follow the discovery rule and perhaps a few that do not consider fraud and concealment. It is important to know the rules in your own state since state law will govern in these areas.
For claims arising in New Mexico, Collins & Collins, P.C. can be reached at (505) 242-5958 .