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.
