Military & VA Medical Malpractice in New Mexico

How to File a VA Medical Malpractice Claim in New Mexico

Filing a medical malpractice claim against a VA facility in New Mexico requires following specific federal procedures under the Federal Tort Claims Act (FTCA). Here are the essential steps:

Step 1: Document Everything

• Medical Records: Request complete copies of all VA medical records related to your care
• Timeline: Create a detailed chronology of events, treatments, and complications
• Witness Information: Gather contact details for any witnesses or other healthcare providers
• Expenses: Keep receipts for all medical costs, medications, and related expenses

Step 2: Obtain Medical Evidence

• Independent Evaluation: Seek evaluation from a qualified medical professional outside the VA system
• Expert Opinion: Obtain written documentation about the standard of care violation
• Future Care Needs: Get professional assessments of any ongoing medical requirements
• Medical Records Review: Have an expert review both VA and non-VA medical records

Step 3: File Standard Form 95 (SF-95)

• Proper Completion: Fill out all sections of SF-95 completely and accurately
• Documentation: Attach supporting medical records and evidence
• Claim Amount: Specify a sum certain (exact dollar amount) for damages
• Timing: Submit within the FTCA's 2-year statute of limitations per 28 U.S.C. § 2401(b)
• Delivery: Send via certified mail with return receipt to preserve filing date

Step 4: Administrative Review Period

• Six-Month Wait: The VA has 6 months to investigate and respond per 28 U.S.C. § 2675
• Agency Decision: The VA will either accept liability and offer settlement or deny the claim
• Documentation: Keep copies of all correspondence with the VA
• Settlement Negotiations: Consider any settlement offers carefully with legal counsel

Step 5: Federal Lawsuit if Necessary

• Filing Deadline: Must file within 6 months of final denial per 28 U.S.C. § 2401(b)
• Proper Venue: File in U.S. District Court for the District of New Mexico
• Legal Representation: Retain counsel experienced in federal FTCA litigation
• Complaint Requirements: Follow federal court procedures and local rules

New Mexico FTCA Claims: State Law Considerations

Statute of Limitations

• FTCA Deadline: Two years from the date of injury or reasonable discovery per 28 U.S.C. § 2401(b)
• Discovery Rule: Clock starts when you knew or should have known about the injury
• Accrual Date: Usually the date of the negligent act or when injury was discovered
• Notice Requirement: Must file SF-95 within this two-year period

New Mexico Damage Considerations

• Economic Damages: No cap on medical expenses, lost wages, and future care costs
• Non-Economic Damages: Under the FTCA, damages follow New Mexico state law for pain and suffering and loss of enjoyment of life. Our attorneys can analyze how New Mexico's damage laws affect your specific case.
• Punitive Damages: Prohibited in FTCA cases per 28 U.S.C. § 2674
• Wrongful Death: Special considerations under FTCA and New Mexico law

Expert Witness Requirements

• Certificate of Merit: Must file with the complaint per New Mexico law
• Expert Qualifications: Must practice in same specialty as defendant
• Standard of Care: Expert must establish breach of applicable standard
• Causation: Must demonstrate direct link between negligence and injury
• Timeline: Expert reports typically required early in litigation process

Comparative Fault Impact

• Pure Comparative Negligence: New Mexico follows this doctrine
• Damage Reduction: Recovery reduced by percentage of plaintiff's fault
• Multiple Parties: Each party's liability determined separately
• Settlement Impact: Affects negotiation strategy with VA