Pat Poblete

Monday, July 30, 2018

Court: Widow waited too long to sue VA for delays in husband’s care

WASHINGTON – A Navy widow whose husband died from kidney disease cannot sue the Veterans Affairs medical center that delayed his treatment, only to send a letter two weeks after his death urging him to seek immediate care.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Monday that Felisa Tunac waited too long to file a negligence claim in the 2009 death of her husband, Randy, who died a week before VA officials said they would be able to get him in for dialysis.

According to court documents, Randy Tunac was first diagnosed with lupus nephritis – a kidney inflammation – while on deployment with the U.S. Navy in 1995. Before that deployment ended, he was medically retired from the Navy but continued receiving treatment for lupus at the Carl T. Hayden VA Medical Center.

In 2009, a private physician who was treating Tunac for a cardiac condition told him to make an immediate appointment at the VA after blood tests showed signs of kidney failure. But the VA told Tunac it could not get him an appointment until October or November of that year.

It was not until Dec. 2, 2009, that Tunac was seen at the medical center, when a biopsy confirmed he had reached end-stage kidney disease and needed dialysis. But he was told the VA could not schedule the dialysis procedure until Dec. 30.

A week before that appointment, Tunac collapsed at work and died of respiratory failure stemming from his kidney disease, court documents show. The medical center sent a letter to Randy Tunac on Jan. 14, 2010, telling him he required immediate treatment or could face “end-stage kidney disease and even death.”

Felisa Tunac filed a complaint in 2015, claiming wrongful death and negligence/medical malpractice. She took her case to the courts after the VA denied her claim.

The VA challenged the ability of the courts to even hear the claim, saying that the Veterans Judicial Review Act limits appeals of veterans’ benefits claims to U.S. Court of Appeals for the Federal Circuit.

The 9th Circuit panel agreed with a district court, which said the VJRA applies to questions of benefits administration, but that claims of negligent performance by a VA doctor could be considered by courts under the Federal Tort Claims Act.

Unfortunately for Tunac, that act has a two-year statute of limitations and the court said she did not file her claim until more than five years after her husband’s death.

Tunac argued that she only became aware of problems at the VA in 2014, after seeing media reports on “gross mismanagement and unacceptable wait times” at the Hayden center that contributed to veterans’ deaths. But the circuit court rejected that argument, saying Tunac “knew or should have known that the VA’s failure to provide timely treatment caused” her husband’s death, and the clock started then.

“Tunac’s claim accrued when she knew that the medical center’s failure to treat her husband and to provide adequate follow-up care caused her husband’s death, not when she learned that the delays were caused by actionable negligence,” said the opinion by Circuit Judge Sandra Ikuta.

Veronica Manolio, the attorney who represented Tunac, said Monday that she had not had a chance to talk with her client, so could not say what steps they might take next. Manolio said it is possible that Tunac could pursue the case under the VJRA in the Court of Appeals for Veterans Claims, but that timeliness might also be an issue there.

The U.S. Attorney’s Office for Arizona did not respond to requests for comment on the case Monday.

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