FAQ’s: Medical Malpractice Claims in New Mexico

If you or a loved one has been a victim of medical negligence, it can be among the most difficult, stressful, disappointing, frustrating, enraging … experiences that you can go through.  There are many reasons for this.

First, and foremost, we all want to trust our doctors.  In fact, we have to place our trust in them every time we or a loved one visits a doctor.  It’s not just us.  Society as a whole places enormous confidence and trust in doctors and the medical profession as a whole.   For pretty much as long as they have been polling, doctors and nurses have been among the top 2 or 3 most respected professions, often holding the top spot.

Nobody wants to admit that doctors and nurses make mistakes.  This is true of patients who could not otherwise confidently go to a doctor for help.  This is true of juries who hold the same biases as everyone else regarding doctors.  It is also true of doctors and medical professionals themselves.  And this perhaps creates the biggest stress on the injured patient and the medical profession.

Trust Betrayed:  Epidemic of Preventable Medical Errors

It is quite remarkable that there is such a high level of denial of medical malpractice in light of the fact that the Institute of Medicine (not exactly  a tool of the trial lawyers) estimated that as of 1999 that as many as 98,000 Americans die each year as a result of medical error.  The numbers have actually gotten worse, not better, since that time with estimates now as high as 440,000 deaths for year and exponentially higher numbers of patients seriously harmed by preventable medical error.

So why does any of this matter to you or your loved one who has been harmed by medical malpractice?  Because, there are many protections in place to protect doctors and the medical industry against lawsuits.  Because of this, you may or should have many questions about how to proceed if you believe you or a loved one has been a victim of medical malpractice.

Question #1:  Did Medical Malpractice Occur?

The first question is whether or not medical malpractice occurred and whether you can get fair and full compensation for your injuries.   you have a claim.  This is in fact a very difficult question to address.  To be clear, it is very hard and expensive to file a medical malpractice claim.  And a bad outcome does not necessarily mean malpractice.  To determine whether there has been malpractice, it is necessary to enlist the services of doctor or other medical professional with expertise in the particular area of medicine to even make a determination of whether the basic requirements for a medical malpractice claim have been met.

Medical experts are very expensive and few very few cases will justify this expense.  Even when it is sent out to an expert, in most cases, there will be a finding that there was not malpractice.   The last thing that we want to do (like most every other lawyers despite the suggestion to the contrary) is to file a baseless lawsuit.  Though some suggest otherwise, lawyers have neither the inclination nor the money to enter into frivolous litigation.  This is true in all areas of personal injury law for most attorneys.  It is particularly true in medical malpractice where a law firm could find itself in the throes of financial ruin after only a few bad decisions due to the enormous expense associated with these cases.

Evaluation of Medical Malpractice Claims Rigorous & Costly

In short, lawyers screen these cases very rigorously with few getting past the evaluation process for medical malpractice claims.  Before and during this process, you will likely have many other questions including questions regarding deadlines, costs, needed treatment, notice of claims to your doctor and so on.  Each of these questions, like the first, can be both confusing and complex.

We will try to address the most common questions on the pages to come.  However, keep in mind that these are only general discussions.  They are not meant to be relied upon as legal advice.  In any personal injury law matter, it is generally unwise to proceed without the assistance of an attorney.  This is particularly so in medical malpractice claims due to their complexity and their many deadlines and other traps.

Having said that, if you think you have been seriously harmed and you believe it is the result of medical malpractice, it is extremely important that you contact an attorney right away for an individual review of your case.  Collins & Collins, P.C. can be reached at (505) 242-5958

What Does “Standard of Care” Mean in a Medical Malpractice Case?

 Standard of care in the context of medical malpractice claims relates to the standard of patient care.  It does not relate to “care” as we customarily use the term.

The standard of care is a technical term.  It has nothing to do with emotional issues.

It is in fact a very high burden for injured patients to overcome.  On the flip side it is a fairly low burden for medical providers.  Many seemingly obvious cases of medical malpractice with tragic and even deadly consequences do not fall below the standard of care.

It Does Not Mean Caring and Compassionate

To begin, it might be best to explain what it does not mean.  It does not mean that the doctor cared or didn’t care about the patient.  This type of caring is completely irrelevant to a determination of medical negligence.

A doctor may not care in the least about the welfare of his or her patient.  Hopefully and presumably, this would be quite rare in the medical field.  But even where this is the case, it simply does not matter for a medical malpractice claim.  Likewise, a doctor may genuinely care about his or her patients.  This too is irrelevant.  Why this is important will be explained below.

Standard of Professionalism Related to the Safety of the Patient

The standard of care is a standard of professionalism, not a measure of caring, compassion or kindness.  It relates to well-established procedures for the treatment of patients.  It relates to the rules that doctors and other medical providers must follow to insure the safety of patients.

It means the standard of medical care or medical services.  It is used in relation to all medical providers from general practitioners (primary care doctors) to the most skilled and highly trained specialists.

Medical Malpractice Requires Treatment Below the Standard of Care in the Community

In order to have a medical malpractice claim, the injured patient must show that the doctor’s treatment fell below the standard of care in the community.  “In the community” raises an entirely different set of questions related to the necessary expert testimony that will be required, which will not be addressed here.  Suffice it to say that it relates to the type of practitioner, the degree of specialization required, and to a lessor degree than in the past, the locality of the provider.

Treatment that “falls below the standard of care” means that the doctor violated rules related to treatment of the particular illness.  It means that the doctor failed to follow well established guidelines and procedures for the treatment of a particular illness.

Bad Outcomes Do Not Equate to Medical Negligence

Having said all that, keep in mind that just because there was a bad outcome or things did not work out as you would have wished does not mean the doctor was negligent.  If the doctor followed the rules and a bad outcome ensues, then there is no negligence upon which to base a claim.

In this case, the doctor’s care in meeting all the rules and procedures for treatment would meet the standard of care.  This is all that is required or reasonably should be required of a doctor.

Mistakes Do Not Necessarily Mean Medical Malpractice

As with bad outcomes, mistakes are predictable in medical care.  This is particularly so in surgery.  There are many mistakes that are considered to be known complications or expected risks of surgery.

Some of these at first glance seem outrageous.  Some result in horrible injuries or death.  However, the standard for a medical malpractice case remains that the medical care fell below the “standard of care”.  In other words, mistakes and bad outcomes occur.  Some of these may seem to most, including attorneys, to be inexcusable and blatant malpractice.  Unfortunately, medical experts upon review will often see it quite differently.

As you will see, the numbers are staggering and death and injury by preventable medical error might well be characterized as an epidemic.  It is extremely important to have the case reviewed by the appropriate medical expert to figure out what happened and if it amounted to medical malpractice.

Medical Negligence and Medical Errors are Far Too Common

Medical negligence occurs in ways too numerous to list.  However, suffice it to say that estimates suggest deaths by preventable medical error as high as 440,000 per year,  1 in 3 hospital patients suffer a medical mistake, and countless others are injured or die as a result of medical errors outside of hospitals in diagnostic settings.

The term is often misunderstood by injured patients.  It is also misunderstood by juries.  This brings us to the question posed above which is why the confusion of the term matters to injured patients.

We have stated this many times throughout our website and blogs, but it bears repeating:  Medical malpractice cases are very difficult and the odds are stacked in favor of the doctors no matter what you may have heard in the press.  It is very hard to reconcile with the numbers above related to the virtual epidemic of medical errors.

We All Trust and Respect Our Doctors

One and perhaps the chief explanation for the disconnect is the sympathy that juries have for doctors.  Part of this sympathy stems from the historical respect and admiration our society has for doctors.  Part stems from the fact that we all want to believe that we can trust our doctors with our lives.

These are good reasons, but much of it stems from all the misleading and dishonest characterizations of injured patients and their lawyers with regards to the great myth of a crisis of frivolous medical malpractice lawsuits against innocent and defenseless doctors (i.e. their insurance companies).

Whatever the root of the sympathy for doctors, it is undeniable that medical malpractice lawsuits have a very low success rate.  Three of four verdicts are in favor of doctors.  The great majority of claims result in no payment to the injured patient or his or her surviving family members.

Some of this might in fact be due to an absence of negligence.  However, when viewing the numbers on preventable medical errors and the fact that very few claims are brought up at all, it is more likely that sympathy plays into the verdicts.

Sympathy for the “Caring” Doctor

The exaggerated sympathy toward doctors in the face of very real and significant medical negligence perhaps also relates to a misunderstanding of the “standard of care.”  The great majority of patients do not bring claims because they believe the doctor did his or best.  Many jurors fall into the same trap with bias toward the doctor who was caring, compassionate and kind, and did his best.

This is where the disconnect comes in.  It does not matter if he did his best.  What matters is that he followed the rules and procedures established for the safety and care of patients.  If he did his best yet violated these rules, then he was negligent.  If he is incapable of meeting the rules and procedures for the treatment of patients, then his best is not good enough.

Who Pays Litigation Costs for a Medical Malpractice Claim?

The issue of litigation costs is at the forefront of most personal injury lawsuits.   The issue of litigation costs is particularly important in medical malpractice cases due to the very high expenses associated with these claims.

Client Ultimately Pays Costs

To get right to the point, litigation costs in medical malpractice claims are often advanced by the attorneys.  However, it is solely up the attorney whether to advance costs or to have the client pay costs in advance or as they are incurred.

The client ultimately pays all costs associated with litigation out of any recovery, whether by settlement or by judgment.  It is important for clients to understand this.  The cost considerations may dictate settlement over trial.  The same cost considerations are present on the defendant’s side as well.

Costs Loom Large in Medical Malpractice Cases 

The consideration of costs is ever present on the attorney’s side.  Consideration of costs will often dictate whether an attorney even takes the case.  An attorney may determine that the costs are too great even where obvious medical malpractice has occurred.

This analysis requires a balancing of costs, damages, and risks associated with the medical malpractice claims.

Weighing Costs Against Damages 

This comes as a surprise to many patients.  There is what may fairly be described as an epidemic of medical negligence in the United States.

It is estimated that as many as 440,000 Americans die each year as a result of preventable medical error.   As many as 80,000 die each year from diagnostic errors alone.  It is safe to assume that the number of serious personal injuries resulting from these errors is exponentially higher than those involving wrongful death.

In short, there is no shortage of medical negligence.  However, every case of medical negligence does not dictate a medical malpractice lawsuit.  Due to the extraordinary levels of expense associated with these claims, many lawyers, including Collins & Collins, P.C. will not or cannot take on the risks without a significant level of injuries and damages.

Damages Associated with Medical Malpractice Claims

Damages are the injuries and losses associated with those injuries resulting from medical negligence.  This would include physical injuries, permanent injuries, lost income, medical expense (past and future) and other losses and expenses associate with the injuries.

In New Mexico, like many states, there are caps on certain kinds of damages depending upon the nature of the medical provider.  These caps issues merit their own discussion.

Costs Associated with Medical Malpractice Claims  

There are many costs associated with these claims and some of them can be very high.  The costs would include the typical costs associated with personal injury claims such as filing fees, costs associated with discovery, depositions, court reporters, videographers and so on.

In addition to these typical costs, there is another level of costs associated with medical malpractice claims.  In New Mexico, medical malpractice claim will not get past summary judgment without an expert opinion.  This means the case cannot move forward without an expert opinion.  Some cases may require numerous experts depending upon the types of claims and the alleged medical negligence.

Many firms, including Collins & Collins, P.C. will get an expert review of the file before even taking the case.  This alone can be quite expensive.  However, this is simply a first step.

From there, these experts on both sides must be paid every step of the way.   Because most medical experts in New Mexico medial malpractice cases are from out of state, this means paying them for travel time associated with coming to New Mexico for trial.

It does not stop there.  In fact, the injured patient will have to pay the opposing expert in order to depose him or her.  Again, these experts may be out of state requiring travel expenses on the part of the patient’s attorney.

Justice May Best Be Served by Other Means

The attorneys are acutely aware of the costs analysis.  The client should be as well.  After all, it does the client little good to win at trial and have the entire judgment eaten up by litigation costs.

It is natural for injured patients to feel betrayed by a negligent doctor and to want to see justice.  However, in some cases where the damages are not there, there may be better routes to justice than a medical malpractice lawsuit.

When Do the Deadlines Begin to Run in a Medical Malpractice Claim?

Medical Malpractice Deadlines Challenge #1 is Figuring Out When They Begin to RunThis is a very important question regarding medical malpractice claims.  It is very important to know all the possible deadlines in a medical malpractice claim.

However, knowing this is clearly not enough.  You must also know precisely when the deadline begins to run.

Date of Incident

Deadlines can be hard to meet in personal injury cases because many times the patient may not realize there is anything wrong until some time has passed.
In most personal injury cases, medical malpractice included, the deadlines begin to run on the date of the incident or the date of the alleged negligence.  This date would start the running of the statute of limitations for you claim.  In claims against the government, it would start the deadlines under the New Mexico Tort Claims Act.  Specifically, it would start the requirement of the 90 day deadline on the Tort Claims Notice, which comes very quickly.

In medical malpractice claims, this can be a problem.  The injured patient may not even know that there has been medical negligence for weeks, months and even years.   There are numerous ways this might come up.

One good example to illustrate the problem, and what is unfortunately not all that uncommon, is the situation where surgical instruments or supplies have been left in the patient.   In this case, the patient may have nagging problems for weeks, months or years.  The patient may complain incessantly to the doctor about pain or other symptoms.  The doctor may chalk it up to recovery.  In some cases, the doctor may even blame the victim saying the victim is overly sensitive to pain, the patient did not properly rehab, the patient has engaged in other behavior that is causing the problems or worse.

This is not just an example.  It is an actual case.  This may and did go on for over 5 years.  Rather than listening to the patient, the doctors blamed the patient with some pretty atrocious allegations.  And rather than accepting the possibility that the patient might be actually suffering, the doctors refused to order a simple CT scan for over 5 years.  When finally the CT scan was ordered, it was found that surgical supplies had been left in the patient and had been causing all of the problems which by that point had become quite unbearable.

Date of Discovery Under the “Discovery Rule”

In some cases the deadlines can be set from the date of the injuries or negligence being discovered, which is set by the “Discovery Rule”
So when do the deadlines begin to run in a case like this?  Certainly, it would be unfair to have it run from the date of incident.  In some, but not all of these cases, the deadline would run from the date of the discovery of the negligence under the “Discovery Rule.”

As noted, the Discovery Rule does not apply to all cases.  The New Mexico Medical Malpractice Act provides extensive protections for doctors who qualify under the Act.   One such protection is the inapplicability of the Discovery Rule for Qualified Healthcare Providers as defined under the Act.   As a result, even in the most egregious of circumstances as set forth above, a Qualified Healthcare Provider is not subject to the Discovery Rule.  Instead, the statute of limitations would run from the date of the alleged negligent act (i.e. leaving the supplies in the surgical site).

Ongoing Acts of Medical Negligence

The statute of limitations is set from the date of the negligence. If the doctor is still acting negligently you may have an opportunity to file your claim.
However, it is important to understand that there may be ongoing acts of negligence against the original doctor or subsequent doctors for failure to diagnose that are within the statute of limitations.  Each new act of negligence has its own statute of limitations.  So even if you think this might be your situation, it is worth having a lawyer take a look at it.

Do Not Delay!

In sum, the deadlines begin to run either on the date of the alleged negligence or in some cases, the date of discovery of the negligence.  Which start date applies can be determinative of whether you may still file a claim.  No matter which start date applies, it is important that you contact an attorney experienced in medical malpractice as soon as you suspect that you have been harmed by medical negligence.  Delay under any of the possible scenarios is never a good idea.

Why Is It So Hard To Get A Lawyer To Take My New Mexico Medical Malpractice Case?

Costs Can Pile Up Quickly in a Medical Malpractice CaseMedical malpractice is anything but uncommon. The estimated deaths by preventable medical error ranges from 98,000 (very outdated number) to 440,000 per year in hospitals alone. Many more deaths result from errors outside the hospital setting. In addition, these are just deaths. This does not include injuries, sometimes devastating and permanent, that are caused by preventable medical error.

Despite the widespread myth of frivolous medical malpractice lawsuits, the opposite is actually true. Only a very small percentage of acts of medical malpractice result in claims, much less lawsuits. There are a number of reasons for this. One of these reasons is the very reason you may be having trouble finding an attorney to take your case.

Medical Malpractice Claims Require Expensive Medical Experts

Medical malpractice cases are very expensive to pursue. Before even taking a case, most attorneys will have had the case reviewed by an expert. The expert will be a medical professional with expertise in the medical field in which the error occurred. In some cases, it may be necessary to have more than one expert for the initial evaluation of the case to determine whether the case should be pursued. These experts are very expensive.

Without an Expert, the Case Will be Dismissed

The evaluation is simply the first stage. Once a case is taken on, the costs will mount quickly. Again, this is due mainly to expert fees. A medical malpractice suit cannot move forward in litigation without a qualified expert opinion regarding the existence of malpractice. Without a qualified expert or experts, the court will dismiss the case without ever getting to trial.

These experts are almost always out of state. New Mexico doctors do not generally want to testify against other New Mexico doctors for any number of reasons. As a result, assuming the case does go to trial, the expert will have to be brought in from out of state to New Mexico for testimony. In the meantime, when the other side deposes the doctor (takes his or her deposition), there will be travel and lodging costs that go to the experts offices.

There are comparable costs related to the other side’s experts. As with supporting experts, the other side’s experts are likely to be outside New Mexico. As such, deposing the expert will again require travel and lodging. In addition, the party that deposes the expert must pay the experts hourly fees, which can be extremely costly.

There are many other costs as well that will begin to mount but these will typically pale in comparison to the expert fees.

So what does any of this have to do with lawyers not taking your case? Everything! Again, despite the myth of frivolous lawsuits and the fictional assault on doctors by lawyers, patients and juries, doctors get every benefit of the doubt with juries as juries typically just plain like doctors.

There are Damage Caps on Many Medical Malpractice Claims

More than that, there are often caps on damages in New Mexico where qualified healthcare providers are involved. This means there are strict limits on the amount that an injured patient can recover even if he or she does win. And the winning percentage of medical malpractice lawsuits is very low.

This means that these cases are very risky for attorneys. After all, if they lose, they do not get paid and they lose all the costs invested in the case. It doesn’t take too many of these to get a lawyer or law firm in a real financial bind. This would apply equally in cases where you actually win but recover less than the actual costs of the lawsuit.

The Costs and Risks Often Make it Hard for an Attorney to Take On Even Cases with Obvious Medical Negligence

So it may be that you have a very strong argument that medical negligence occurred in your treatment but the potential for recovery at trial is greatly outweighed by both the costs and risks of moving forward.

Although most attorneys practicing in this area would love to help every single patient injured by medical negligence, it simply is not possible. These cases have to be chosen with extreme caution.

This means, for our firm at least, that the great majority of these cases must be turned down not because there wasn’t any negligence involved but because the injuries and possible award of damages do not justify the expense of moving forward.

Having said that, it is important to talk to as many attorneys as possible. All attorneys have different evaluation criteria and it is very likely that if you persist and there was indeed medical negligence with injuries, you will be able to find an attorney willing to take your case.

What is a Qualified Health Care Provider in New Mexico and Why Does it Matter?

This question is frequently asked in New Mexico medical malpractice cases.  It is very important and should be asked at the very least by the attorney handling the claim

The first part of the question is pretty straightforward.   The second part is far more complicated and raises a host of other issues and questions regarding medical malpractice claims in New Mexico.  As such, the second part is addressed in summary fashion meant only as a brief overview.

So what is a “qualified healthcare provider”?  It is essentially a doctor or other medical provider that has opted in to protection under the New Mexico Medical Malpractice Act (MMA) by meeting a few minor insurance requirements.

There are fairly nominal requirements to qualify as a “qualified healthcare provider” under the MMA.  To qualify under the MMA, the medical provider need only provide proof of financial responsibility which essentially amounts to proof of insurance in the minimum amount of $200,000 per occurrence.

Failure to opt in and provider the proof of financial responsibility/insurance means that the medical provider will not enjoy the many protections under the MMA.   This brings us to second part of the question which is “Why does qualified healthcare provider status matter to an injured patient?”

There are a number of protections afforded qualified healthcare providers in New Mexico.  First, and most important, are the caps placed on damage awards for medical negligence claims against qualified healthcare providers that do not exist for those outside the MMA.  The cap for any one claim is set at $600,000.  A provider’s individual liability is limited to the $200,000 minimum insurance coverage.

In addition to the cap, the MMA specifically states there will be no monetary award for future medical expense.  Because of the nature of injuries in these claims, this can be extremely harmful to an injured patient who must have (pay for) continuing medical care related to the negligence of the medical provider.  This of course raises many policy issues, the most obvious of which is why must an injured patient (or more often taxpayers through Medicare or Medicaid) bear the costs of a medical provider‘s negligence?

The next important aspect of qualified healthcare provider status is the process by which a claim must be initiated against a qualified healthcare provider.  Unlike other personal injury cases, an injured patient cannot simply file a lawsuit against a qualified healthcare provider.  Instead, under the MMA, the patient must first take the case before a Medical Review Panel.  This means the plaintiff must first present his or her case to the Panel for review and findings regarding the alleged negligence.  The panel consists of doctors and lawyers.

Though it is required that the case be presented to the Panel, the Panel’s decision is not binding on the injured patient.  The injured patient may still file suit even if the panel finds against him or her.   This is a good thing since the Panel typically sides with the medical provider.

In short, the determination of whether the medical provider is a qualified healthcare provider is critical.  It should be done very early in a potential case.  The determination will dictate the course of the case.

Keep in mind that these issues can be quite complicated.  This is particularly true of the caps issue.   The caps raise a host of challenges in these cases which must be met in order to achieve meaningful compensation for an injured patient.

Medical malpractice claims in New Mexico (and elsewhere) have many complexities, obstacles and limitations that other cases do not have.  It is extremely important that you immediately consult with an attorney experienced in medical malpractice if you have been seriously injured and have reason to believe that medical negligence was to blame.


What Can I Do to Protect Myself from Medical Negligence?

This may be the most important question you should be asking regarding medical malpractice.  Unfortunately, if you are reading this, it may already be too late to prevent harm already caused by medical negligence but it might be helpful moving forward.

If you or a loved one are about to get treatment in a hospital, it is important that you understand the risks and the necessary precautions to protect against what can safely be called an epidemic in preventable medical errors.

There are numerous hospital survival guides out there.  There are also guides on how to protect yourself more generally from medical negligence.  You should review these before you get treatment.  The precautions below are only a start.  There are many others that may be appropriate in your situation.

Estimated 400,000+ Deaths Per Year by Preventable Medical Error

For a little background on why these measures are necessary, you should know the statistics on medical error.  As of 1999, the Institute of Medicine estimated that up to 98,000 patients die each year as a result of preventable medical error.  Exponentially more suffer serious injury.

These 1999 numbers now sound quaint.   The estimates have grown each year since as this 1999 study resulted in serious study and investigation into the matter.  As it stands currently, it is estimated that up to 440,000 patients each year die in hospitals from preventable medical error.  Viewing the trends, there seems no reason to expect the numbers to have improved nor to believe they will improve.  This is particularly true in light of constant and unrelenting attack on the rights of patients and families by insurance companies and their cronies in Washington.

Steps to Protect Yourself and Loved Ones from Medical Error

In light of these figures, there is a good chance that you too will be the victim of medical error.  The good news is that there are steps that you can take to protect yourself.  Be aware that it will not be that easy and will take a little work on your part.

1.  Do a little research on your medical provider.

You would not buy a car without doing some consumer research.  And cars are far more reliable than medical providers.

2.  If you can, bring an advocate to your appointments.

This can be very helpful for any number of reasons.  First, they can help take notes.  Secondly, if you are sick or medicated, they can help to insure that your needs are addressed and that you understand necessary actions on your part following the appointment.  Finally, they can speak up for you when necessary as you may be too sick, groggy or even intimidated by your medical provider to do so yourself.  There is indeed strength in numbers.

3.  Keep notes of all your medical conditions and symptoms.

The doctor or other medical provider should keep your medical history and should know it.   However, this is a major problem where there is a lack of communication and/or a lack of diligence on the part of the medical providers in maintaining and reviewing these records.

4.  Bring your prescriptions bottles so that your medication and dosage is reviewed and properly prescribed.

It is estimated that medication errors alone kill thousands of patients every year.  Once you receive your prescriptions, read them to make sure they are right.  Review them after you get them from the doctor, review them again with the pharmacist, and finally review the packaging once you have received it.

5.  Keep notes of all meetings with doctors and other medical providers.

It is recommended that you consider tape recording the meeting.  The reason for this is not to trap your doctor.  You do this so you do not forget what was said.  It is estimated that patients will remember 30% or less of what is said at medical appointments.

6.  Mark your surgical site.

The one might and realistically should come as a surprise. Unfortunately, it is a very real risk.  Make sure you mark your surgery site yourself.  Wrong site surgeries, surgery on the wrong organs, removal of the wrong organs and so on are far too common to ignore.

7.  Protect yourself from infections.

Infections in hospitals have reached near epidemic levels.   You need to protect yourself to the degree you can. You should not rely on the hospital or its staff to protect you.  Some recommended precautions include regular cleaning of your room and furniture, cleaning of instruments before using them on you, changing sheets every day, making sure that all medical providers and staff wash their hands when they enter the room, and other actions necessary to maintain an infection free environment.  Unfortunately, you should not have to do this but even casual observation will show you how important this is.

8. Educate yourself.

Educate yourself every step of the way beginning with research on your condition, the symptoms, appropriate medications, possible dangerous drug combinations, and so on.  Keep notes and take them with you to all appointments.  And back to precaution #1, research your doctor, medical providers and facilities.  There are some by whom you simply do not want to be treated.


It may be alarming and it may seem just fantasy but this is no joking matter.  4400,000 deaths, millions more harmed, by preventable medical errors in hospitals alone should tell you otherwise.  This it is the reality of medical care in American hospitals.

Do not rely entirely on your doctors and other medical providers to protect you. They won’t.   You must protect yourself.

What are the Most Common Claims for Medical Malpractice?

There is no confusion over the top areas of medical negligence.  There have been numerous studies that have shown the areas with the highest rate of medical error and patient harm.  Likewise, there have numerous recommendations on how to avoid or minimize these errors.

The numbers on preventable medical error are astonishing.  It has been suggested that these rates of error could be reduced by up to 70% with a variety of protective measures put in place.  Some of the measures are basic common sense.  Others are more technological and costly.  It might be prudent to keep the words of Benjamin Franklin in mind when he said, “an ounce of prevention is worth a pound of cure”.

There is good reason for implementing protective measures even if they are costly.  The estimates vary greatly on the costs of medical mistakes.  It has been estimated that treatment necessitated by medical error accounts for anywhere from 18 to 45 percent of total healthcare spending.  At either level, it represents hundreds of billions in spending.

Unfortunately, the reality remains that 1 in 3 patients suffer from hospital acquired injuries and 98,000+ die each year from preventable medical errors.

Here are the top areas of medical negligence and consequently the most common basis for medical malpractice claims:

  1. MEDICATION ERRORS: Medication errors are rampant in medical care, particularly in hospitals where it has been suggested that on average every hospital patient will suffer one medication error per day.  These errors include the errors in prescribing or administering the wrong medication, to the wrong patient, in the wrong dosage, at the wrong time.  This assumes that the medical provider administered the medication at all, which is also a significant area of neglect.
  2. DIAGNOSIS FAILURES: Failure to properly diagnose an illness is the second leading area of medical error.  The failure to diagnose can have tragic and sometimes deadly consequences.  These failures can result in either improper treatment or delayed treatment.  These failures can be catastrophic for patients, particularly where they have a deadly, but treatable, illness or injury.
  3. NEGLIGENT SUPERVISION: The failure to properly supervise medical personnel at all levels.  This includes the failure to supervise residents, nurses, staff and so on.  Errors by improperly supervised medical personnel can have disastrous consequences for an innocent patient.
  4. DELAYED TREATMENT: The delay in treatment can be related to a failure to diagnose.  It can also simply be the result of good old fashioned neglect and inattention.  One not infrequent example occurs in the ER where a patient with an obvious medical emergency is left untreated for a long period of time which causes what would otherwise be preventable harm.  Other errors might include delays in reviewing or communicating diagnostic results suggesting immediate or otherwise timely care
  5. FAILURE TO OBTAIN INFORMED CONSENT: This is both a common issue and a common defense of medical providers.  In essence, the provider argues that you knew the risk of us screwing up and you let us treat you anyway.  However, patients consent to competent medical care not to incompetent care and in New Mexico a broad consent will not prevent a claim, nor should it.

There are a number of other common areas of medical negligence.   These are simply the most common malpractice claims.  One thing to keep in mind is that contrary to the standard medical provider response, these errors are generally preventable.

Some of these preventable errors have become so prominent that it is argued by the medical profession that they are an inherent risk of medical care.  This forms the basis for the informed consent forms that basically say whatever happens, it is to be expected, and you agree not to sue us.

If you or a loved one has suffered serious personal injury or wrongful death, and you believe it was the result of a preventable medical error, then you should run it by an attorney.  You have a right to know and you have a right to recovery where medical negligence was the cause.

VA Hospital Medical Malpractice

Medical negligence occurs in all varieties of medical settings.  It is estimated that over 400,000 Americans are killed each year as a result of preventable medical errors.

Unfortunately, it seems that veterans may face even bigger threats to their health, safety and lives due to the systemic negligence of the VA medical care system.

No End to News Stories Depicting Systemic and Pervasive Issues at VA Hospitals

The news over the past several years has been chalk full of stories of abuses at the VA. Much of the news began with the many issues surrounding VA neglect and abuse in the VA disability process. Those were troubling and continue unabated. Just as troubling, perhaps more so, is the news over the last year or so surrounding VA medical negligence in the care of veteran patients.

It seems that a new story on medical negligence at the VA comes out weekly. It begins with falsified waiting lists and wait times for appointments to improve the VA’s performance numbers. Then the stories came about the shredding of patient medical files. Finally, news of the criminal indictments issued for falsifying medical records to suggest veterans were refusing recommended treatment when they were not.

VA Systemic Negligence Puts Veteran Lives at Risk

This is more than a few misguided staff and administrators. It is a systemic problem. The VA medical system seems to be driven by performance reviews rather than patient care. One would think the two would be related but in this case they are not. In fact, patient care is falsified in one way of another every step of the way by some VA hospital management and personnel.

All the while, the VA and others continue to tout the successes of the VA as if to sweep these abuses under the rug as quickly as news cycles run. And then it gets worse with every new revelation.

So one might ask, is this just a rant or is it actually important to a discussion of a VA medical malpractice article. Each and every one of these practices puts the health and lives of veterans at severe risk. Not surprisingly, it appears that these practices have led to the wrongful death of many veteran patients.

Medical Malpractice and Wrongful Death Claims

The numbers are a moving target on the wrongful death associated with medical care through the VA. Because they will probably be outdated tomorrow, it may simply be said that thousands of veterans have died, are dying and will die in the future as a result of VA medical negligence.

Each one of the practices mentioned gives rise to possible medical malpractice and wrongful death claims against the VA Hospital. The deliberate delays in treatment, abrogation of treatment responsibilities, falsification of treatment reports and just plain refusal to treat in a medically acceptable manner where they lead to serious harm or death of the patient is by definition medical malpractice.

Veterans and their families need to understand their rights. Perhaps more importantly, if they have any suspicion of medical negligence and consequent harm at the hands of the VA, they need to carefully scrutinize every medical record for falsified and missing records. Unfortunately, this is what it has come to: veterans simply cannot trust the VA hospital to uphold its responsibilities and duties in the care of veterans.

Medical Malpractice Claims Do Not Have to Be Against the Doctor

Keep in mind that many of the abuses above have nothing to do with individual doctors. Of course, like any other medical setting, there will be doctors and other medical providers that commit grave and inexcusable errors. However, again like other medical settings, the vast majority of doctors and other medical providers are caring and competent taking their duties towards patients very seriously.

In the case of the VA hospital, the great bulk of the negligence comes from hopstial administration. It is not doctors shredding medical records, it is administrative staff. These folks are agents of the VA hospital and therefore their actions are imputed to the VA hospital. In short, the claims will rightfully be against the VA hospital.

VA Medical Malpractice Claims Present Special Challenges

Claims against the VA hospital fall under the Federal Tort Claims Act (FTCA). The FTCA presents a number of obstacles, challenges and deadlines unique to VA malpractice claims. These are simply procedural and are not too difficult to overcome. The issues cited above are not so easy.

Medical malpractice claims are generally very difficult and expensive to pursue. This is the case even where the medical provider is completely cooperative and honest. With the VA practices coming to light each and every week, it might be expected that there will be no such cooperation. For instance, how might the VA revive records and does it have the capacity and record keeping practices necessary to correct falsified treatment records? And if they do, will they ever notify the patients affected by these practices?

Assuming the stories are all true, and assuming that this is a system wide problem not necessarily limited to any particular facility, the answers are likely bleak.

The Albuquerque medical malpractice attorneys at Collins & Collins, P.C. can be reached at (505) 242-5958.

Guide to VA Medical Malpractice Claims

Pocket Guide to VA Medical Malpractice Claims in New Mexico

This Guide is a basic overview of veterans and families rights to seek full and fair compensation of injuries suffered as a result of medical negligence in their care at the VA.

The pages that follow are drawn from the Pocket Guide to VA Medical Malpractice Claims which is available in pdf or Kindle format.

Many Misconceptions Around VA Medical Malpractice  Claims

Veterans and families harmed by medical negligence while in the care of the VA medical system often do not know their rights or how to protect them if they do know.  There are many misconceptions such as the surprisingly common belief that they have no recourse and in fact cannot file a claim at all.  Others arise because of the byzantine nature of the VA on the whole which leads to doing nothing at all.  Then there is the belief that the only recourse is through the VA Administration along the lines of disability claims.  There are others as well.

You Do Have a Right to File a Medical Malpractice Claims against the VA

You have a right to sue.  There are many rules that apply so you must understand and abide by those rules to avoid forfeiture of your rights.
 First and foremost, it should be understood that if a veteran or one his or her family members is harmed by VA medical malpractice, there is a right to both file a claim with the VA and to then file a lawsuit if the matter is not resolved directly through the VA.

There are many laws, rules and deadlines associated filing a claims against the VA.  There are in fact overlapping state and federal laws governing these types of claims.  This can be quite confusing for veterans and families.  On the other hand, the same holds true in any medical malpractice claim.  There are simply rules that must be followed no matter who the claim is against.  The only real complicating factor with VA medical malpractice claims is the fact that these are governed by the Federal Tort Claims Act.  There are in fact both advantages and disadvantages to the Federal Tort Claims Act.  Is important to understand and plan accordingly.

Do Not Go this one Alone!

The fact is in cases involving serious injury or death, an experienced medical malpractice attorney is highly advisable.  Doing a VA medical malpractice claim or any other medical malpractice claim without the assistance of an attorney would likely end in a very poor outcome.

The guide will walk you through much of this in a generalized manner.  From there, it is important to seek the guidance of an attorney to walk you through the process to its conclusion.

Collins & Collins, P.C. can be reached at (505) 242-5958.


Introduction to Guide to VA Medical Malpractice

Medical Malpractice in VA Hospitals Most Often Systemic Rather than Ground Level Patient Care

Medical malpractice can occur in any medical setting including the VA. Studies have shown that the rate of medical malpractice in VA facilities is actually less than in private medical care. This is remarkable in light of all the news that has come up over the last few years regarding what appears to be systemic negligence in VA Healthcare.

This is not to suggest that VA medical providers do not commit malpractice. It does happen. However, what the recent stories suggests in light of the lower than normal rates of medical malpractice among VA medical providers is that the negligence is systemic beginning at the top administrative levels and filtering down through administrative personnel. This is reflected in the news regarding falsified wait times, very long wait times, falsified medical records and so on. These intentional acts are way beyond negligent potentially causing innocent veterans and families catastrophic harm or death.

Veterans and Their Families Often Not Aware of Their Rights or the Rules Regarding VA Medical Malpractice Claims

There are many misconceptions surrounding VA medical malpractice claims.  Many veterans and families are not aware of their rights.  In fact, many believe they have no rights based upon a misunderstanding of the Feres Doctrine which prohibits active military from filing medical malpractice claims against military and VA medical providers.  Others believe their rights are limited by VA disability benefits laws.  Still others are simply overwhelmed by the thought of pursuing a medical malpractice claim against the huge bureaucracy that is the VA.

The fact is that veterans and families do have rights to fair and full compensation when they are harmed by medical malpractice at the hands of the VA.  Having said that, there are many rules that apply.

Laws, Rules and Deadlines on VA Medical Malpractice Claims

Veterans and families have rights.  These rights must be pursued diligently with the many rules and deadlines associated with these claims.

The most important thing to keep in mind is the 2 year statute of limitations on claims against the Federal Government.  Second is to understand the exceptions to the deadline under the discovery rule and the rule regarding fraud and concealment which can extend the deadline.  Finally, it must be understood that these claims are governed by both federal and state law which can add some manageable complexity.

The rules and deadlines are addressed in the pages that follow.  They are also addressed in a more concise form in pdf or kindle format which you can find here:

Also available in Kindle Format

Seek Legal Guidance in Case of Serious Injury or Death

The bottom line is if a veteran or a veteran family member suffers serious harm or death under VA medical care, the veteran and family need to understand their rights and how to protect and enforce those rights.  The best way to do this is through the guidance of an experienced medical malpractice attorney.

The Albuquerque law firm of Collins & Collins, P.C. can be reached at (505) 242-5958.

5 Common Misconceptions about Veteran Rights in VA Medical Malpractice Claims

There are numerous misconceptions surrounding the right of veterans and families to sue the VA for medical malpractice claims.  Below are 5 that seem to be most common.  There are certainly others that arise on a case by case basis which is just one of many very good reasons to seek legal guidance in the state in which the medical malpractice occurred.

Misconception #1: Feres Doctrine – No Right to Sue?

First, and most harmful to a veteran and family, is the misconception that a veteran and/or family member has no right to sue the VA at all for medical malpractice. It is not clear why this is so commonly misunderstood.

Perhaps, it arises from the draconian Feres Doctrine which veterans no doubt learned about while in the military. The Feres Doctrine is a grossly unjust rule that prevents active military from suing military hospitals for medical malpractice.  Keep in mind that the Feres Doctrine applies only to active military personnel, not their families.  This means that spouses and children can sue a military medical provider under the Federal Tort Claims Act.

Moreover, make no mistake, the Feres Doctrine does not apply to veterans or family members under VA medical care. Veterans can sue. Family members can sue on behalf of veterans. Family members can sue on their own behalf for negligent medical care provided to the family member.

Misconception #2: Family Members Cannot Sue the VA

As mentioned, this is also incorrect. Family members can sue the VA in a number of capacities.

First, a family member can bring a claim on behalf of an injured or deceased veteran. In both cases, there a number of steps that would need to be taken. In case of an injured veteran, the family member could sue as the conservator which requires an appointment through the state courts. In the case of a wrongful death claim, the family member could sue as the personal representative of the veteran’s estate. This again would involve the state courts requiring the appointment of the family member as personal representative under the New Mexico Wrongful Death Act. Each of these requires legal procedures that would suggest obtaining the services of an attorney.  There are essential steps to filing a wrongful death claim.  It is important to carefully and fully understand and abide by the requirements under the New Mexico Wrongful Death Act.

Second, the family member can sue on his or her own behalf, or on the behalf of a child negligent VA medical care. In case of injury, this is fairly straightforward. The family member would file in his or her own name or as the parent of a child. In case of wrongful death, the family member would again need to be appointed personal representative of the child’s estate under the Wrongful Death Act. Wrongful death claims have unique requirements, it is important to understand and follow the necessary steps for initiating a claim.

Misconception #3: Only a Family Member Can Sue on a Veteran’s Behalf

This is again incorrect. A veteran, living or deceased, has the same legal rights as any other patient. Folks other than family members can fulfill the same roles set forth above as conservator or personal representative. This may be necessary for any number of reasons that need not be stated here.

In any event, it is very important to understand and carefully follow the rules regarding the filing of claims on behalf of non-family members.

Misconception #4: Definition of VA Medical Care

The definition of what constitutes VA medical care seems to be widely misconstrued as well. The bottom line is that the VA Healthcare System is vast. The VA doesn’t just have hospitals and clinics. It has medical and mental health clinics, substance and alcohol abuse treatment programs, a wide spectrum of services addressing mental health issues and community-based supportive services for combat veterans (Vets Centers) and family supportive services. Harm suffered under the medical care of any of the various programs could give rise to a medical malpractice suit.

There are additional complications as well. The VA is heavily reliant on outside medical providers for a vast array of medical services. The involvement and negligence of these outside parties can complicate things. In short, it is important to identify these providers and to name them in any lawsuit along with the VA.

Misconception #5: Medical Malpractice Claims are Easy

Medical malpractice claims are widely and wildly misunderstood by the public. This is based upon the grossly distorted myth of an epidemic of frivolous medical malpractice claims. Without belaboring the issue, it is estimated that as many as 440,000 patients die each year in U.S. hospitals from preventable medical error. The fact is that a very tiny fraction of these result in any kind of claim. A tiny fraction of these result in compensation to the patient or family.

The fact is medical malpractice claims are extremely difficult, expensive and risky for lawyers to take on. As a result, attorneys must screen these very carefully on the presence of malpractice as well as the degree of harm suffered by the patient and/or family.

This issue is particularly problematic in VA claims for one very significant reason. The Federal Tort Claims Act strictly limits the attorney fees on claims against the federal government including the VA. These fee restrictions limit the fees to about one-half of the typical attorney fees for medical malpractice claims

The fee restrictions are purportedly for the protection of injured folks against the “greed” of their lawyers. In fact, it is simply a way of keeping them out of the courthouse to begin which means many valid claims will never be heard unless the victim pursues the claim on his or her own which is challenging to say the least.

For New Mexico based medical malpractice claims against the VA, Collins & Collins, P.C. can be reached at (505) 242-5958.

Governing Law: Both State and Federal

Medical Malpractice Claims Against the VA are Governed by State & Federal Law

Medical malpractice claims against the VA will be governed by both state and federal law. State law will govern the medical malpractice claim itself.

Because the VA is a federal agency, the claim will also be governed by the Federal Tort Claims Act. Both are extremely important and both sets of rules, requirements and procedures must be met.

State Law Governs the Medical Malpractice Claim Itself

This is a vast topic best left for individual case analysis. However, there are a couple of basic points for a patient to understand.

Basically, a patient harmed by VA medical malpractice in New Mexico will have all the protections afforded patients under New Mexico law. Likewise, the New Mexico patient will be governed and held to all the same standards that would apply to non-VA medical malpractice claims.

There are unique rules associated with New Mexico medical malpractice claims.  These must be followed while also abiding by the rules and deadlines under the Federal Tort Claims Act.

Federal Law Governs Claims Against Federal Entities Such as the VA

Because the VA is a federal agency, it receives a fair amount of protection under the Federal Tort Claims Act. The FTCA has a number of special requirements not present in claims against other non-federal entities. These are primarily related to deadlines and filing procedures for VA claims under the FTCA.

There are numerous rules and deadlines associated with filing a claims against the VA for medical malpractice under the Federal Tort Claims Act.  The first requirement relates to the administrative claim filing requirement.  Basically, an administrative claims must be filed prior to filing a lawsuit.  The admin claim must be filed within 2 years of the date of medical negligence absent exceptions under the discovery rule or rules regarding fraud and deceit.

Seek Legal Guidance in the State Where the Medical Malpractice Occurred

It is important to enlist the guidance of an attorney in the state where the negligence occurred due to the overlap of state and federal law.  For claims occurring in New Mexico, Collins & Collins, P.C. can be reached at (505) 242-5958.

Administrative Claims Requirements and Procedure

Again, the Federal Tort Claims Act requires that the administrative claims process be exhausted prior to filing a federal court lawsuit. This means that a claim must be filed first with the Office of General Counsels Regional Counsel Office in the VA region where the claim arose which can be found here along with instructions and forms on how to file a claim: http://www.va.gov/OGC/RCOffices.asp.

The deadline for filing the administrative claim is 2 years from the date of negligence or the date of discovery whichever applies under the circumstances. Failure to do so results in a bar to the claims.

It should be noted that the statute of limitations on VA claims applies to filing of the administrative claim.

Filing the Claim – Standard Form 95

The filing requirement is very easy to meet. The claim can be filed using a Standard Form 95. For claims arising in New Mexico, SF 95 would be filed with Regional General Counsel – Phoenix Office – Region 19. You can find the proper regional office at the VA Office of General Counsel website if you are not in New Mexico. You can also find forms and instructions on filing the Form 95 through their site.

Administrative Decision and Deadlines on Subsequent Lawsuit

These claims are often, if not routinely, denied. It is important to know when and what must happen next.

The VA Regional Counsel has 6 months to make a decision. If the VA does not make a decision within 6 months, the patient/family can move forward with the federal court lawsuit. Whether or not to do this is an important decision.

Likewise, if the VA denies the claim, the patient/family has 6 months from the date of denial to file a lawsuit. Failure to file within the 6 months will bar the suit.

Amount Claimed is the Limit of Recovery

One interesting aspect and possible trap under the FTCA is that the amount of compensation demanded in the Standard Form 95 is the limit of recovery. This means that you cannot raise the amount that you are asking later in a federal court lawsuit.

This means that you should err on the high side since you cannot later raise the amount if and when a suit is necessary.

Seek Local Counsel

It is very important that you seek the guidance of an attorney in the state in which the medical malpractice occurred.  These claims are governed by both state and federal law.  State laws vary widely for medical malpractice claims and strongly suggest the guidance of an attorney experienced in the state where the negligence occurred and in Federal Tort Claims.

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

Tolling of the Statute of Limitations in VA Medical Malpractice Claims

New Mexico medical malpractice claims have unique rules and deadlines.  The statute of limitations on medical malpractice claims typically begins to run on the date of the negligent act. However, these deadlines may be tolled or suspended in limited situations.  Tolling of the statute of limitations means that the statute of limitations will not begin to run until some triggering event other than the negligent act itself.

There are a few things to keep in mind regarding possible tolling of the statute of limitations on VA medical malpractice claims. Some of these are particularly relevant to VA claims in light of the rather abhorrent administrative practices revealed over the past few years such as falsified waiting lists, long wait times for appointments, falsification of refusals of care, and so on. These tolling provisions may be all that is standing between injured veterans, their families and justice.

Discovery Rule Exception

The discovery rule was discussed above. Again the discovery rule under New Mexico law provides that the statute of limitations does not begin to run until the negligence is known or should have been known by the injured patient/family.

In light of what appears to be systemic concealment, deceit and fabrication of negligent and dangerous practices, the discovery rule is perhaps as vital to the protection of patients under VA medical care as any other healthcare setting.


Fraud and concealment will result in the tolling of the statute of limitations on most every kind of claim, including personal injury and medical malpractice claims. Again, in light of the systemic neglect found in VA hospital care such as the falsification of patient records including the incredibly callous falsification patient refusals of mammograms, this may be a good candidate for tolling of the 2 year statute of limitations.

As with the discovery rule, and in fact a variation on the discovery rule, the statute of limitations will not begin to run in cases of fraud or concealment until the patient “knew or should have known” of the concealed negligence.

Continuing Care Exception

The continuing care concept relates to both the discovery rule and fraud/concealment. The continuing care doctrine will apply where the patient is misled either deliberately or innocently by the medical provider regarding medical progress. This would apply in cases where the medical provider tells the patient that the problems, pain, symptoms… are simply part of the recovery process when in fact they are not.

This scenario is often unintentional. This is of no consequence. In fact, this may constitute medical malpractice in itself. This is actually not too uncommon in medical malpractice cases generally, not just within the VA.

For instance, surgical errors are often made that are known risks of the surgery, such as damage to adjacent organs and nerves. It is not the surgical error that constitutes the medical malpractice but the failure to detect or otherwise diagnose the error in a timely manner to avoid further unnecessary and often catastrophic consequences to the patient.

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

Medical malpractice claims against the VA are governed by both state and federal law.  It is important enlist an attorney experienced in both.  This is particularly so in medical malpractice claims due to the very wide variations in state law governing these claims.

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

Who Can Sue on a VA Medical Malpractice Claim?

In order to file a lawsuit, including medical malpractice lawsuits, a party must have standing to sue. In cases where a veteran has been harmed, the veteran can certainly file on his or her own behalf. The issue gets slightly more complicated when the veteran is incapacitated or deceased.

Claims for Incapacitated Veterans

In the case of an incapacitated veteran, an interested party, usually a spouse, adult child, other family member or friend may act on the veteran’s behalf with a proper power of attorney. Hopefully, this is obtained prior to the veteran becoming fully incapacitated.

In case there was no power of attorney, and the veteran has become incapacitated, the interested party can petition the court for appointment as the veteran’s guardian with a Petition for Guardianship.

Claims for Deceased Veterans

In case of a deceased veteran, New Mexico law requires the appointment of a personal representative under the New Mexico Wrongful Death Act. This is typically, in the absence of dispute, a fairly straightforward process. The individual, usually a family member, will simply file for appointment with the appropriate New Mexico District Court. The process takes a couple of months.

Individual Claims by Spouses and Children related to Veteran’s Injuries/Death

In addition to the veteran’s or his estate’s claims for personal injuries or wrongful death, the veteran’s children and spouse may have claims of their own for losses associated with the injuries or death to the veteran. These are called loss of consortium claims.

Loss of consortium are basically claims for loss of the relationship and companionship with the veteran. They can be filed for both personal injury claims and wrongful death claims. In cases of spousal loss of consortium, whether or not to bring a claim can be somewhat complex since a loss of consortium claims will often bring some very uncomfortable, highly private and sensitive questioning of the spouse both before trial and at trial.

The loss of consortium claim can take the focus off of the medical malpractice of the VA and the harm to the veteran, instead creating a soap opera style inquest into the private lives of the veteran and his or her spouse. It can in fact harm the veteran’s claim. It is not an easy decision and should be made with care.

Family Members for Medical Negligence in Their Own Care

If a spouse or child is treated through VA and suffer injuries from medical negligence, they can sue for these injuries under the Federal Tort Claims Act. In addition, many spouses and children of active military personnel are treated at VA medical facilities. They too can sue for their injuries. They are not excluded by virtue of the Feres Doctrine. In fact, spouses and children generally are not prevented from suits against military hospitals or VA hospitals for injuries they suffer themselves as a result of medical malpractice.

Seek an Attorney in the State where the Medical Malpractice Occurred

VA medical malpractice claims are governed by both state and federal law.  It is important to find an attorney in the state where the negligence occurred experienced in both.  This is very important in medical malpractice claims due to the wide variation in state laws governing these claims.

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

Who Should be Sued/Named in a VA Medical Malpractice Claim?

The Short and Safest Answer is to Name All Possible Defendants

As with any medical malpractice claim, it is important to identify each and every possible negligent medical provider. This may be a mix of private, state/local, and VA medical providers. Each must be dealt with appropriately.

The use of outside medical providers is very common. This is particularly true of specialists and specialized services. The important point is to understand that each and every medical provider that has acted negligently and thereby caused harm must be identified and named in the lawsuit.

The VA Claim Itself Must Name the United States of America as the Defendant

In cases against the VA, once past the administrative stage, the federal court lawsuit must name the United States in addition to the other defendants.

This is simply a weird but serious requirement under the Federal Tort Claims Act which requires that all suits against federal governmental agencies such as the VA be brought against the United States.

Seek Experienced Counsel in the State in Which the Medical Malpractice Occurred

VA medical malpractice claims are governed by both state and federal law.  It is essential to obtain an attorney experienced in both in the state where the negligence occurred.  This is especially important in light of the fact that states have widely varying laws governing medical malpractice claims

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

First Steps in a VA Medical Malpractice Claim

There is no need to discuss the entire complex and lengthy process involved in a medical malpractice claim. What is important is to understand what must be done and how to do it in order to get started. It is seemingly simple but it can take time so it is very important to start right away as soon as you suspect medical negligence.

Obtain All Medical Records

This seems simple enough but in actuality it can be quite cumbersome, time-consuming and in some cases expensive. In those cases where only the VA is involved, these should be easily obtained through the VA. IF the VA is for some reason uncooperative, they can be obtained through the filing of the administrative claim with the VA. These are provided at no costs to the veteran or his or her legal representative.

However, it is often not just the VA that holds the medical records. There may be records spread across multiple medical providers, some of which are not within the VA system. These must be identified and requested individually. In cases involving non-VA medical providers, these records can be expensive to obtain based upon cost per page charged by the provider or records custodian.

HIPPA Laws Always an Issue in Collecting Medical Records

HIPPA is an ever-present issue in the collection of medical records. It is critical in cases where the veteran is incapacitated or deceased. In order to obtain the records, the person requesting them must have proper authority. This could be under a medical power of attorney if the veteran executed one prior to incapacitation. Unfortunately, this is the exception and there is typically no medical power of attorney in place.

Instead, the person requesting the records must get court authorized permission through appointment as guardian/conservator in case the veteran is living or appointment as the personal representative under the New Mexico Wrongful Death Act in case the veteran is deceased.

The records collection process can take a long time depending upon the medical provider and the court processes necessary for HIPPA compliance. The time necessary to collect records must be considered in light of the other deadlines and delays in the evaluation of the claims.

Have the Records Reviewed by a Medical Expert

In any medical malpractice claim, including those against the VA under the Federal Tort Claims Act, you do not get out of the gate without the appropriate qualified medical expert. In fact, failure to obtain an expert will result in a summary dismissal of your claims. You will not ever get to trial or anywhere near it without an expert. Your case will be dismissed early upon the VA’s inevitable Motion for Summary Judgment.

Experts are expensive and often very slow. This means you must act immediately to identify the right expert. This is typically done through an attorney who will first review the records before expending money on the expert.

Be Alert to All Possible Deadlines in VA Medical Malpractice Claims

This might have gone first in the steps due to its importance. Deadlines are deadlines when it comes to Federal Tort Claims Act cases and medical malpractice claims. There are important steps and deadlines involved in a VA medical malpractice claim including those applying to the requirement of an administrative claim against the VA prior to filing a lawsuit.  Failure to abide by these rules and deadlines can seriously jeopardize if not completely bar your rights to compensation.

Understanding deadlines is especially important in medical malpractice claims. The reason for this is the amount of time it takes to collect medical records and then get the case reviewed by a competent and appropriate medical expert.

Collecting medical records can take several months under the best of circumstances. Other times it may take much longer depending upon the medical provider and the records custodian. To make matters worse, there may be providers implicated in other records of which the veteran is not aware. When this occurs, it is then necessary to obtain those records and so on.

An expert review of the records can take months longer. Most credible experts have day jobs in the medical field. Often times, those same experts have teaching engagements at medical schools. In short, their time is limited and their time is their own.

The important point to take from all this is that you must act right away. Most attorneys, including Collins & Collins, P.C., will be very reluctant to get involved in a case that has short deadlines.

Seek an Attorney in the State Where the Negligence Occurred

VA medical  malpractice claims are governed by both state and federal law.  State laws vary widely making it very important to find an attorney experienced the state in which the medical malpractice occurred.

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

The Feres Doctrine: What it Is and What it Isn’t

What the Feres Doctrine Is!

The Feres Doctrine is a national disgrace. It is horribly unjust to active military injured in the course of medical care at a military or VA medical facility. When it applies, it is virtually impossible to get around.

The Feres Doctrine bars medical malpractice claims by active duty military against military or VA hospitals.

What the Feres Doctrine is Not

On the other hand, the scope of the Feres Doctrine is apparently and surprisingly widely misconstrued by veterans, active military and families who believe it to be a complete prohibition of claims against the VA and/or military medical facilities for medical malpractice.

  1. It is not a prohibition on claims by veterans, their spouses or their children harmed by VA medical malpractice.
  2. It is not a bar to the spouses and children of active military personnel for harm suffered by the spouses and children in the course of their own medical care through military or VA medical facilities.

In short, veterans and families may sue the VA for medical malpractice for injuries suffered by the veteran.  Families may sue the VA for injuries suffered by family members while under VA medical care.

Moreover, spouses and children may sue military hospitals for their own injuries suffered under the care of a military hospital.

Seek Experienced Legal Counsel in the State Where the Negligence Occurred

These types of claims are complex.  VA medical malpractice claims are governed by both state and federal law.  This would hold true as well for claims against military hospitals located in the States.  It is important to seek the guidance of an experienced attorney in the state where the medical malpractice occurred.

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

VA Medical Malpractice Case Evaluation Process at Collins & Collins, P.C.

Medical Record Review

The claims evaluation process is seemingly simple. Our attorneys review the medical records to determine if we believe there might be medical malpractice with consequent serious injuries or death. Because neither a judge nor the VA cares one iota about what lawyers think about the matter, if the case appears to involve medical malpractice with serious or deadly harm, we then send the records to the appropriate medical expert(s) to get an expert opinion on the merits of the claims.

It is surprising how often we are wrong and the medical expert indicates that there was no medical malpractice and/or the injuries were not related to the medical malpractice. This has happened on cases with catastrophic or deadly consequences where the negligence seemed indisputable. To this day, there are several that we are still shaking our heads about.

However, we have learned by trial and error not to go against our expert. Going against our experts has led to rather disheartening outcomes for both our firm and our client. As such, we do not go against our expert.

Case Criteria: Risks, Costs, and Possible Compensation to the Veteran

As suggested above, medical malpractice claims are generally very difficult, expensive and risky for attorneys to pursue. This is never truer than in cases against the VA because of very strict and low attorney fee limitations. The allowable fees are about one-half the typical fee charged by medical malpractice attorneys making it doubly important to carefully screen cases.

This means that many veterans with valid claims may have trouble finding an attorney to take on the claims. Attorneys must review the case in terms of not just the presence of medical malpractice but also the degree of injuries and other losses. It may sound callous but unfortunately the cases must be reviewed in terms of costs necessary to pursue the claims, the risks of losing and the possible compensation to the veteran which in turn dictates the compensation to the attorney. Cases that do not involve very serious injuries or death in all but very rare cases are difficult to justify in terms of these considerations.

Medical Records are Necessary for both Attorney and Expert Case Evaluation

As mentioned above, it is absolutely essential that all relevant medical records are available for review by the attorney and then the expert. As also suggested, in cases involving multiple medical providers other than the VA, this can be both cumbersome and expensive.

In those cases, Collins & Collins, P.C. may depending upon what the available records show require that the veteran or family pay for the costs of the records collection in advance.

Collins & Collins, P.C. – Strict Case Review

ts There must be clear medical malpractice along with serious injuries or death. Due to the costs, time and risks associated with medical malpractice claims, there is simply no way to get the strict screening of cases.

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.

Deadlines on Medical Malpractice Claims Against the VA

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.

How Long Do I Have to File a Medical Malpractice Claim?

This is a very important question in medical malpractice cases.  It actually raises a number of different questions and issues.

Government v. Private Medical Provider

First, there a few different deadlines that you might be facing depending on the type of medical provider that you believe acted negligently causing you harm.  The deadlines will depend on whether the medical provider is a governmental entity or a private entity.

Determining the type of entity (government or private) is extremely important because there are very short deadlines in claims against state, county and local governments.  It is not always clear what kind of entity it is so it is important to make this determination as quickly as possible.

Tort Claims Notice Requirement (ONLY 90 DAYS!) — Applies to Claims Against the Government

As stated, in claims against the state, county and local government, there is a very short first deadline.  This applies to all such claims including medical malpractice claims.  The first deadline is only 90 days.

Within 90 days of the negligent act that caused you harm, you must put the government on notice of a possible claim. This is done by mailing a Notice of Tort Claim (Tort Claims Notice) to the appropriate entity or entities.  Determining who to mail the notice to can be a bit of challenge in some cases.  So again, it is critical to get started.

Keep in mind that just because you mail a Tort Claims Notice to a medical provider does not mean you must sue them.  However, you must mail the Notice to protect your claim just in case.  Likewise, just because a lawyer sends a Notice for you, does not mean the lawyer necessarily believes it is strong case.  Nor does it mean the lawyer is committing to filing suit.  Instead, the lawyer may be simply sending the Notice as a courtesy.  In the alternative, the lawyer may send the Notice to protect the claim while he or she investigates further.

Statute of Limitations — Period Depends on Whether Governmental or Private Medical Provider

Tort Claims Notice deadlines are unique to claims against the government.    One deadline that applies to all personal injury claims, medical malpractice claims included, is the statute of limitations.  For personal injury claims, the statute of limitations is typically 3 years.  However, once again, there is a different rule for claims against the government.    For claims against the state, county and local government, the statute of limitations is only 2 years.

Now that you know the statute of limitations time limits, you should understand exactly what a statute of limitation is and what it does.  It is a deadline within which a lawsuit must be filed.  There are statutes of limitations for every kind of lawsuit.  Again, for personal injury cases, the deadline is typically 3 years (except in claims against the government).  If you do not file the lawsuit within the 3 year period (absent very rare and exceptional circumstances), you are barred from filing suit.  In other words, if you miss the statute of limitations, then you cannot bring a claim at all.


There are a few other points to make.  First, there are different rules for claims against the federal government which will be addressed elsewhere.  Second, because failure to abide by the Tort Claims Notice rules and Statutes of limitations will bar your claim completely, you should not delay speaking with an attorney if you have been harmed as the result of medical negligence.  This is important in all personal injury cases.  It is particularly true in medical malpractice claims which can take well over a month, sometimes several, to evaluate the case due to the need for expert review of the file.

This brings us to the final point.  Many lawyers (including Collins & Collins, P.C.) will not take a claim on a short statute of limitations because of the time necessary to evaluate a medical malpractice claim.   So once again, if you have been harmed as a result of medical negligence, contact an attorney experienced in medical malpractice claims as soon as possible.  Missing a deadline, whether it is the Tort Claims Notice or the Statute of Limitations, will bar your claim completely.

What are the Deadlines for Filing a Medical Malpractice Claim against a Qualified Healthcare Provider?

In New Mexico, like many states, doctors and other medical providers enjoy a number of protections that are not available to others that cause harm.  In order to get the benefit of these protections, the medical professional must be a “qualified healthcare provider” under the New Mexico Medical Malpractice Act.

Medical Review Panel Requirement

One of the main protections for medical providers and hurdles for injured patients is the requirement for that the patient first take his or her case before a Medical Review Panel before filing a medical malpractice lawsuit.  This is not required for doctors who are not qualified healthcare providers.

Statute of Limitations

This brings us to the question of deadlines in a claim against a qualified healthcare provider.  Medical malpractice lawsuits, like all personal injury claims, have statutory deadlines.  One such deadline is the statute of limitations.  For personal injury claims, including medical malpractice claims, the statute of limitations is typically 3 years from the date of the alleged act of negligence.

Claims Against the Government

It is important to note that claims against governmental facilities or providers have shorter deadlines.  The first important deadline in claims against the government can run in as little as 90 days and the statute of limitations is only 2 years.  Deadlines on governmental claims are discussed at length elsewhere on this site.

Discovery Rule Does Not Apply to Qualified Healthcare Providers

Returning to the limitations on claims against qualified healthcare providers, the requirement that a claim first be brought before a Medical Review Panel raises additional issues.  Medical malpractice claims are unique in a number of ways that could make this requirement very burdensome.

First, it is not always apparent at first that the patient has been injured or that the medical provider was negligent.  One good example is when surgical supplies or instruments are left in patient are not discovered for months or even years.  In cases against non-qualified healthcare providers, the injured patient gets the benefit of the “discovery rule” which means the statute of limitations does not begin to run until the negligence is discovered.

In claims against qualified healthcare providers, the patient does not have the benefit of the discovery rule.  The statute of limitations runs in 3 years no matter when the negligence is discovered.  The requirement of the Medical Review Panel could create impossible barriers to a claim if the negligence was discovered near the end of the 3 year period.

Tolling of Statute of Limitations While Before Medical Review Panel

The Medical Malpractice Act throws injured patients a bone here.  Though the claims must be brought to the Medical Review Panel within 3 years, the statute of limitations is tolled while the case is pending before the Panel.  This means the statute of limitations stops running while the case is before the Panel giving the injured patient additional time to file suit.

Under the statute, the statute of limitations will not start running again until 30 days after the Panel’s final decision.  Once it begins running again, it will run normally up to the 3 year statute of limitations.  This provides some protection for those that discover the negligence late into the limitations period and get their claim before the Medical Review Panel in a timely manner.   It provides no protection for those that discover it after the 3 years has run.

Do Not Delay!

Like all these situations, every case is different requiring careful individual analysis.  Even if the statute has run against one provider, it may not have run against others.  For example, there may be numerous negligent parties some of whom are qualified healthcare providers and others who are not.  It is important to make these determinations as soon as possible.

Due to the complexities of medical malpractice claims, the many unique rules, the protections for some providers and the sheer difficulty of bringing these claims, it is extremely important that you  immediately contact an attorney with experience in medical malpractice claims if you or a loved one has been seriously injured and you suspect medical negligence is the cause.

Delay in these claims is always inadvisable.  Missing the statute of limitations will bar your medical negligence claim completely.

For additional reading on New Mexico Medical Malpractice issues visit the Medical Malpractice Section of our Personal Injury Law Blog.

(505) 242-5958