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.

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