The indictment was 50 counts. Rumor has it that vastly greater numbers of records were falsified. At the risk of stating the obvious, delays in treatment can be, and often are, deadly.
The obvious question for those harmed by the fraud and deceit of the VA, is does this affect a veteran’s rights to legal claims against the VA medical system for medical malpractice? The simple answer is yes, but…
The Discovery Rule and the Statue of Limitations:
The statute of limitations on medical malpractice claims under the Federal Tort Claims Act, including claims against the VA, is only 2 years. However, the Federal Tort Claims Act follows state law in the location where the medical negligence occurred. This is important for determining when the statute of limitations begin to run.
Medical malpractice cases carry many special rules regarding deadlines. The most pertinent here is the “discovery rule.” Not every state follows the discovery rule. New Mexico does.
In New Mexico, the discovery rule does not apply in all medical malpractice cases but it most definitely will apply to medical malpractice claims against the VA. Specifically, it will apply to cases involving falsification or destruction of medical records.
This means that the statute of limitations on claims against the VA for these abhorrent practices will not begin to run until the negligence has been or reasonably could have been detected. The clear reason for this that a patient has no way of knowing in many cases whether negligence has occurred and if he or she has been harmed. Chances are that most veterans and veteran families have no idea that their records were falsified. It may be expected that the VA will do nothing to alert them to this fact now even in light of these revelations.
These practices will continue to take a toll on veterans and families if they are not notified of the malfeasance. Take again the most outrageous falsifications that patients refused cancer diagnostics. The patient will never know of the negligence or the harm until finally diagnosed with cancer. It may be too late at that point for effective medical care. However, it will not be too late to ensure that the VA takes full responsibility for its actions and the actions of its agents and staff.
Without the discovery rule, virtually all such medical negligence claims would be completely barred by the statute of limitations due to the length of time it takes cancer to develop through the stages. The discovery rule will most assuredly apply to many cases involving falsified refusals of diagnostics and follow up care. However, in New Mexico, the fraud itself will also toll the statute of limitations.
Fraud and the Statute of Limitations
Presumably, as in New Mexico, most states have some tolling of the statute of limitations based upon fraud of the defendant. The fraud present in the case leading to indictments and what one might expect will be similar cases across the country would definitely toll the statute of limitations in New Mexico. Presumably, it would do so under all but the harshest of state laws.
This means that veterans that have been harmed or killed in the past but prevented from learning of the negligence by virtue of the VA’s fraud may/probably still have a medical malpractice claim.
Challenges to Medical Negligence Claims are Significant Where Records Falsified
Make no mistake these claims will be hard. If files have been falsified, it is not enough to get the medical records and have them reviewed by a lawyer and then a medical expert. It will also be necessary to get a forensic expert to determine if falsifications have taken place.
This puts veterans and their families at a huge disadvantage. Indictments are not enough. The records need to be corrected and all veterans ever remotely possibly affected should be notified immediately. Perhaps it is skeptical, but this seems highly unlikely in light of the many ongoing and seemingly never ending stream of injustices committed against veterans by their own healthcare system.
Laws Vary from State to State on Medical Malpractice Claims: Seek Experience Legal Counsel
It is extremely important to seek the guidance of an attorney experienced in medical malpractice in the state where the negligence occurred. The rules will vary from state to state.
It is very important to get your medical records or the records of a deceased loved one. Then review them carefully to determine if there are falsified or missing records. Document it as well as you can. Then seek experienced legal guidance.
The Albuquerque medical malpractice attorneys at Collins & Collins, P.C can be reached at (505) 242-5958.