Systemic Negligence and Medical Malpractice Claims Against the VA Hospital

 The VA Hospital system has been under attack lately for their secret waiting lists.  These secret lists were allegedly used to gin up their productivity and quality of care numbers. A number of offending facilities have been identified.  Now the VA Hospital in Albuquerque has joined that list.

The Daily Beast article leads as with “Veterans with serious heart conditions, gangrene, and even brain tumors waited months for care at the Albuquerque VA hospital, a whistleblowing doctor tells The Daily Beast.”

Not Just an Outrage to Veterans, Systemic Medical Negligence

This news is astonishing on so many levels.  Beyond the fact that it is an outrageous insult to our nation’s Veterans, it is disgrace to the medical profession.  If true, it almost definitely constitute medical negligence giving rise to medical malpractice claims in the event of personal injuries or wrongful death arising out of these practices.

In fact, it seems safe to say that If the level of neglect reaches any where near the levels that the article suggest, there should be numerous medical malpractice claims against the Albuquerque VA Hospital arising out of what appears to be systemic medical negligence in the care of Veterans.

Destruction of Secret Waiting Lists and Medical Malpractice Claims

The Daily Beast article states that the a whistleblower inside the VA Hospital has reported that the VA has already begun destroying medical records which may make it will be very hard to determine just how many veterans were harmed by the delays in treatment.

The article suggests that the “secret wait list” in the Albuquerque VA Hospital has either been moved or destroyed as a result of the prior revelations of these same practices in the Phoenix facility.

The question that many Veterans and/or their loved ones will be asking is if the destruction of these lists will prevent them from making medical malpractice claims against the VA Hospital.  The answer is no, it will not.

An individual Veteran’s claims will be for neglect in his or her care not a broader claim for institutional negligence.  In other words, in case of medical malpractice in any individual case,  there will be sufficient evidence of neglect from a review of the individual Veteran’s medical records. Evidence of systemic negligence is just icing on the cake.

Medical Malpractice Claims Remain Whether or Not the Secret Lists are Destroyed

These folks should take heart in knowing that these practices will not jeopardize their claims. The fact is that there will be records of Veteran visits.  There will also be records of reported illness that necessitates medical attention and follow up.

The VA Hospital is held to the same standard of care as other medical providers.  The VA Hospital, its doctors, and other employees do not get a free pass on their duties and obligations to patients simply because they work for the VA Hospital.  One duty is the duty to maintain and preserve medical records.  These medical records are totally independent and separate from any “secret waiting lists”.

Potential Harm to Patients

There were reports out over the last several weeks regarding a number of wrongful deaths of Veterans related to the secret waiting list.  The Inspector General did get involved and apparently has not as of yet found any verified deaths from these horrendous medical practices.

So does it matter that the Inspector General has not yet verified any deaths related to VA Hospital neglect?  Not a bit!

Diagnostic Errors and Follow Up Care

The fact is that diagnostic errors are among the leading causes of death not just in medical malpractice but generally.  It is estimated that as many as 80,000 deaths per year occur as a result of diagnostic errors.

This includes failure to diagnose, delayed diagnosis, wrong diagnosis and failure to follow up with appropriate additional diagnostics and medical care.  These will all come up in the case of claims against the VA Hospital arising out of the delays and failures in the care of Veterans.

The fact that the Inspector General has not identified any deaths does not mean that deaths have not occurred or will not occur because of the VA Hospital’s neglect.  It most certainly does not mean that there have not and/or will not be serious, permanent, and potentially catastrophic injuries associated with the delays in treatment.

Medical Community Standards Apply to VA Hospital

There is a duty to properly and timely diagnose illnesses.  There is likewise a duty to follow up on any resulting diagnosis or other suspicious findings.  This really goes without saying.

The New Mexico Uniform Jury Instructions address these duties.  The doctors in the VA Hospital will be held to the standard of the medical community in New Mexico and specifically Albuquerque.

New Mexico Jury Instruction §13-1101 states:

In treating, operating upon, making a diagnosis of, and caring for a patient, the medical provider is under the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors other health care provider practicing under similar circumstances, giving due consideration to the locality involved. A doctor or other health care provider who fails to do so is negligent.

No Free Pass Because VA Hospital Systemically Neglects Patients

The key language beyond the general duties stated is “giving due consideration to the locality involved.”    This means the Albuquerque medical community in the particular area of medicine at issue.

It does not mean that a VA doctor will get a pass because he is part of a community that has systemically neglected their patients and therefore he or she should be held to no higher standard this his or her peers.

VA doctors and medical providers have the same duties of care as any other medical providers int he community with respect to  “treating, operating upon, making a diagnosis of, and caring for a patient”.

Protect Your Rights

Medical malpractice claims are difficult.  There are many fairly high burdens on the injured plaintiff to prove medical malpractice.  This is no different in the case of claims against the VA.

In addition to all the normal requirements for bringing a medical malpractice claim, there are additional requirements in case of claims against federal entities such as the VA Hospital.

The most important to know out of the gate is that there is a shortened statute of limitations on claims against the federal government under the Federal Tort Claims Act.

Do Not Delay!

The statute of limitations on these claims is only 2 years on claims against the VA Hospital.  Evaluation of medical malpractice claims can take months.

Because of the short statute of limitations and the time necessary to evaluate these claims, it is very important to contact an attorney immediately if you believe you or a loved one has been seriously harmed by the medical negligence of the VA Hospital system.

In addition to contacting an attorney to review your claims, Senator Tom Udall has set up a website for Veterans to report abuse and neglect in the New Mexico VA Health Care System.  Let your voice be heard and report to Senator Udall at  According to the site, your identity and any information provided will be kept “strictly confidential and secure”.

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