Medical errors leading to serious injury or death are far too common in the U.S. In fact, death by preventable medical error is the third leading cause of death in the U.S. behind only cancer and heart disease.The VA Health Care System (VA) is no different.
Like all medical malpractice claims, there are strict requirements for filing these claims. Claims against governmental entities, whether local, state, or federal have shorter deadlines. In the case of claims against the federal government there are also additional requirements that must be met.
Federal Tort Claims Act
Claims against the VA come under the Federal Tort Claims Act. The Federal Tort Claims Act has a number of requirements and limitations not present in claims against private providers.
First, and foremost, the statute of limitations is shorter under the Act. Like suits against other New Mexico governmental entities, including government hospitals and clinics, the statute of limitations on claims against the VA is only 2 years. If you miss this deadline, your claim is barred completely.
Administrative Claim Requirement
In addition, unlike claims against state and local governments, suits against the federal government, including the VA, have an administrative claim requirement.
This means that prior to filing suit, you must first file an administrative claim. This claim is filed using Form 95. Form 95 is not necessarily required so long as you meet the administrative claim filing requirements. However, it is advisable to use this form to make sure you have met those requirements by following the instructions on the form.
Denial of Administrative Claim
The federal agency, the VA, in this case has 6 months to approve or deny the claim. There is a pretty good chance that the claim will be denied. There is also the possibility that the VA will fail to act within the requisite 6 months. If the VA fails to issue a decision within the six-month deadline, then the claimant may deem the claim denied.
Once the administrative claim is denied, which you should expect will be the case, you then have 6 months from the date of denial to file your lawsuit in Federal District Court. Keep in mind that you will have a minimum of 2 years from the date of the alleged negligence (or the date on which the claim accrued which may be different and is beyond the scope of this article) to file your lawsuit. This means that if the administrative claim is denied early into the 2 year period, you will have more than six months to file the claim.
Familiarize Yourself With the Federal Tort Claims Act
Medical malpractice claims are complex and difficult. There is added complexity in the case of claims against the VA. It is advisable that you seek the guidance of an attorney. If you decide to go without an attorney, the rules apply just as if you had one. There is no leniency for self-represented (pro se) parties.
If you do choose this course, the rules for filing, along with the deadlines, are all set out in the Federal Tort Claims Act at 28 USC §2675. It is crucial to meet the requirements set forth, so it is important to get acquainted with this section if you have any intention of filing a claim for medical negligence against the VA. This is probably a good idea whether you have an attorney or not.
Missing a deadline or failing any of the other requirements can jeopardize and even bar your claim.
Find Additional Reading on New Mexico Medical Malpratice Issues visit our Medical Malpractice Blog