In 2018, Mr. Smith, a veteran, initiated a lawsuit in federal district court against the United States, proceeding under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. Section 1346(b). Mr. Smith claimed, in part, that various medical professionals working for the Department of Veterans Affairs (the “VA”) breached their legal duty to exercise ordinary medical care and negligently failed to diagnose his throat cancer and immediately treat it. The district court granted the government’s motion to dismiss Smith’s complaint for lack of subject matter jurisdiction, concluding that its judicial review of his claims was precluded by the Veterans’ Judicial Review Act (“VJRA”), 38 U.S.C. Section 511(a), which restricts judicial review of “questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.”
The United States Court of Appeals for the Eleventh Circuit (“Federal Appellate Court”) held in its opinion dated July 29, 2021 that the district court did lack jurisdiction over some of Mr. Smith’s claims, but that it had jurisdiction over his tort claims alleging medical negligence or malpractice, and thus affirmed in part and reversed in part the dismissal of Mr. Smith’s complaint.
The VA provides medical care to veterans through the Veterans Health Administration (“VHA”). The Secretary of Veterans Affairs (the “Secretary”) manages the provision of health benefits to eligible veterans. The VA provides medical care to veterans by two means: (1) by providing care directly through the VA’s own medical professionals and their supporting personnel; and (2) by paying medical-care providers in the local community outside the VA when veterans need care that cannot be provided within the VA system.
As to outside treatment, the medical care is arranged through a purchased-care model where the VA must authorize the outside treatment in advance. 38 U.S.C. Section 1703. The VA’s approval process for outside care has two components: (1) administrative review; and (2) clinical review. The process begins when a VA provider (such as a doctor) completes, signs, and submits a non-VA care referral through the VA’s Computerized Patient Record System. Members of the VA’s Care Coordination Team then perform an administrative eligibility review to determine whether to approve the outside care. The administrative review involves determining whether the patient is eligible as a veteran to receive VA benefits.
The VA’s Care Coordination Team also performs a clinical review. That clinical review—which cannot occur unless the patient is administratively eligible—concerns whether, for example, the services are available within the VA and whether the outside services are medically necessary. While the eligibility review may be conducted by someone acting in a solely administrative role, the clinical review is conducted often by a nurse, sometimes with the oversight of a doctor. The “referral review process” is complete once the referral is approved or denied.
Mr. Smith filed his lawsuit against the United States (“the government”), pursuant to the FTCA, 28 U.S.C. Section 1346(b). He alleged, inter alia, that “various personnel at the VA[ ] were negligent in regards to the care and treatment of” his cancer by “[f]ailing to timely act in the face of Smith’s concerning symptoms and test results, resulting in inexcusable delay in the diagnosis, at a time when his cancer was treatable and curable,” and thereby failed to meet the applicable and appropriate medical standard of care.
The government moved to dismiss Mr. Smith’s complaint for lack of subject matter jurisdiction under the VJRA, which precludes judicial review of VA benefits decisions. The government acknowledged that Mr. Smith framed his FTCA claim as sounding in medical negligence but argued that his claims actually turned on the fact that his medical care was delayed and thus “he was denied benefits.” The district court concluded that its judicial review of Mr. Smith’s claims was precluded by the Veterans’ Judicial Review Act (“VJRA”), which restricts judicial review of “questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans” and dismissed Mr. Smith’s complaint without prejudice. Mr. Smith appealed.
The Federal Appellate Court held: “Regardless of whether the VA’s medical professionals and their supporting personnel responsible for providing, coordinating, and managing Mr. Smith’s care chose to treat Mr. Smith’s condition within or without the VA, they had a duty to adhere to the standard of medical care for diagnosing, treating, and managing a patient with Mr. Smith’s serious condition, and Mr. Smith’s complaint alleges that they did not do so … It defies both common sense and the plain language of the VJRA to frame Mr. Smith’s case as one in which he seeks solely to have an Article III court review a benefits determination by the Secretary.”
Smith v. United States, 2021 WL 3204498, — F.4th — (2021).
If you or a loved one suffered harm as a result of medical malpractice involving a VA medical facility, you should promptly find a federal medical malpractice lawyer (Federal Tort Claims Act lawyer) who may investigate your VA medical malpractice claim for you and represent you or your loved one in a Federal Tort Claims Act medical malpractice case, if appropriate.
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