Gene Cleveland Battieste was a veteran who underwent surgery at the Veterans Affairs (“VA”) Medical Center in Jackson, Mississippi on September 7, 2006. Mr. Battieste consented to surgery on his C3–C7 vertebrae. However, the VA also operated on his C2 vertebra without his knowledge or consent. Mr. Battieste reported itchiness and a rash at the site of the incision in a post-operative visit. Subsequently, Mr. Battieste reported an elevated temperature and malaise, and he developed a moderate MRSA (staph) infection and an elevated white blood cell count.
In 2008, Mr. Battieste applied for VA disability benefits, which were approved in 2020 by the VA Board of Veterans’ Appeals (“BVA”). That BVA decision recounts Mr. Battieste’s relevant medical history. It details a 2016 opinion by a VA examiner who diagnosed Mr. Battieste with postoperative degenerative arthritis, wound infection, a C2 cervical fracture, and increased neck pain. This 2016 examination noted that the C2 vertebra operation was conducted without Mr. Battieste’s consent or knowledge. Mr. Battieste’s medical history placed him at additional risk which should have led to additional testing, and “the VA’s failure to monitor [Mr. Battieste] closely post-operation was clearly a breach in the standard of care.”
The 2020 BVA report concluded that the VA did not provide Mr. Battieste with “proper informed consent” and failed to inform Mr. Battieste or his family of the unapproved surgery. Additionally, the VA had “failed to provide [Mr. Battieste] with an appropriate standard of care prior, during, and immediately post-op when he was discharged with a fever.” The BVA decision was the first time Mr. Battieste was notified of the VA’s medical negligence and the unauthorized procedure.
In November 2022, Velma Battieste, Administrator of Mr. Battieste’s estate, filed an administrative claim with the VA under the Federal Tort Claims Act (“FTCA”) for his injuries caused by the unauthorized surgery and ensuing complications. The VA denied the claim in November 2023. In May 2024, Ms. Battieste filed a complaint for medical negligence under the FTCA. The district court granted the United States’ motion to dismiss because her claims were time-barred by Mississippi’s medical malpractice statute. Ms. Battieste appealed.
The United States Court of Appeal for the Fifth Circuit stated in its Opinion filed on February 27, 2026: “Mississippi’s intermediate appellate courts identify § 15-1-36(2)’s seven-year provision as a statute of repose. The statute bars any claim brought more than seven years after the complained-of act occurred. Because Ms. Battieste brought her claims eighteen years after Mr. Battieste underwent the unauthorized surgery, her claim is time-barred. The district court’s judgment is AFFIRMED.”
Source Battieste v. United States of America, No. 25-60111.
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