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.

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