Tunac v. United States (9th Cir., July 30, 2018, No. 17-15021) __ F.3d __ [2018 WL 3614044]
Felisa Tunac sued the United States under the Federal Tort Claims Act (FTCA) for wrongful death and medical malpractice after her husband Randy died from kidney failure while a patient at a Veterans Affairs (VA) hospital. Although Randy’s blood test indicated kidney failure, the VA hospital took three months to schedule a biopsy, which confirmed end-stage kidney disease requiring dialysis. The VA hospital scheduled Randy’s dialysis appointment for nearly a month later, but he died from renal failure seven days before the appointment. Two weeks later, the VA sent a letter addressed to Randy notifying him that his kidney disease required immediate treatment or would result in “end-stage kidney disease or death.” About four and a half years later, Tunac saw media reports that gross mismanagement and unacceptable wait times at the VA hospital had contributed to preventable veteran deaths. Less than one year later, Tunac filed an administrative claim with the VA, which it denied. In the ensuing district court action, the court concluded it had jurisdiction to hear some of Tunac’s claims, but dismissed them as untimely.
The Ninth Circuit affirmed. First it decided the threshold jurisdiction issue, holding that the portion of Tunac’s complaint alleged medical negligence by VA healthcare employees was governed by the FTCA. Accordingly, those claims need not proceed under the Veterans’ Judicial Review Act (VJRA), which requires that VA benefits decision be reviewed exclusively by the Veterans Court, whose decisions are reviewable exclusively by the Federal Circuit. However, to the extent Tunac alleged negligence in scheduling appointments and treatment, the Ninth Circuit lacked jurisdiction because such allegations did not give rise to a reasonable inference that VA medical professionals breached their duty of care, but rather sought relief for administrative negligence that must be channeled through VJRA procedures. After confirming its jurisdiction, the Ninth Circuit determined that Tunac’s malpractice claims accrued no later than when she received the VA’s letter explaining the potentially fatal consequence of delayed treatment, and were untimely because she initiated her administrative action well after FTCA’s two-year limitations period had elapsed.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
California Society for Healthcare Attorneys
1215 K Street, Suite 800
Sacramento, CA 95814
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