On April 4, 2022, Plaintiff filed a personal injury claim with the VA by completing a Standard Form 95 (“SF-95”). Plaintiff sought $500,000 in damages for personal injury – specifically, his acute kidney injury (“AKI”) – resulting from the purported failure of medical professionals to diagnose the declining condition of his kidneys in the years leading up to a diagnosis that he received during a visit to the Lynchburg General Hospital in April 2020. Plaintiff’s description of the basis of the claim also referred to “three or four incorrect entries” in his health records, but he did not provide specific details about these alleged errors.
By letter dated August 8, 2022, the VA’s Office of General Counsel denied the claim. Plaintiff subsequently submitted an appeal letter to the VA. On June 28, 2023, the VA Office of General Counsel once again denied Plaintiff’s claim after reconsidering it. Thus, Plaintiff had six months from June 28, 2023 to file a suit in federal district court.
Before the FTCA’s six-month window to bring a lawsuit closed, Plaintiff timely filed a complaint against the United States in the United States District Court for the Western District of Virginia. Shortly thereafter, he filed his amended complaint on December 19, 2023. Plaintiff’s pro se complaint requested three forms of relief: (1) a “maximum monetary award allowed in the amount of $5,500,000.00 … for malpractice;” (2) “100% disability the injury of diabetes that was likely caused by the defendant” and “100% disability for the injury of chronic kidney disease caused by the negligence of the defendant;” and (3) “the privilege of being enrolled in the Veteran’s Choice Program which will allow me to seek health care in the community of my choice.”
The Defendant raised three grounds for its motion to dismiss: first, a lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1); second, the two-year statute of limitations for FTCA claims; and third, a failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
The Defendant argued that Plaintiff failed to raise most of the claims in his complaint in his prior administrative claim and that the Court accordingly lacks the subject matter jurisdiction to hear such claims. In response, Plaintiff contended that the reason he did not include all his current claims in the original administrative claim is that he was “not aware of all of the evidence of malpractice that existed in my health records when I filed my claim.” The District Court stated, “But this does not exempt Plaintiff from the FTCA’s express statutory requirement that all claims be presented to the VA before initiating a FTCA lawsuit in this Court. 28 U.S.C. § 2675(a). Moreover, Plaintiff has also not asserted that he lacked access to relevant records or was otherwise prevented from presenting the allegations through the administrative claim process (except Claim 4 involving a matter that arose after Plaintiff filed the administrative claim in April 2022) to the VA … Based on a review of Plaintiff’s SF-95 and other materials Plaintiff submitted to the VA for its consideration – including the appeal letter and the addendum – the Court finds that Plaintiff did comply with the FTCA’s administrative exhaustion requirements with respect to Claims 1 through 3, as well as Claim 7(b).”
With regard to the Defendant’s statute of limitations argument, the District Court stated: “Here, the asserted injury of not receiving test results accrued when the Salem VAMC failed to inform Plaintiff of what it detected in his urine in February of 2016 and March and June of 2019. Because Plaintiff presented his administrative claim to the VA in April of 2022 – over two years after this purported conduct – the claims are time-barred under the FTCA. Accordingly, the Plaintiff cannot bring Claim 2 as part of this case and the Court must grant Defendant’s motion to dismiss with respect to this claim.”
With regard to the Defendant’s availability of remedies argument, the District Court stated, “the Court emphasizes that Plaintiff will only be able to obtain relief for his FTCA claims that is authorized by the FTCA. Notably, injunctive relief will be unavailable because the statute only provides for money damages as a remedy.”
The District Court concluded: “Plaintiff contends that medical malpractice by Salem VAMC personnel over the years
contributed to his development of various medical conditions, particularly chronic kidney disease. However, key features of the FTCA – including administrative exhaustion as a condition precedent to litigation and the two-year statute of limitations – constrain the Court’s authority to hear all of Plaintiff’s claims. The Court finds that it lacks subject matter jurisdiction to hear Claims 4 through 7(a) and Claims 8 through 10 because Plaintiff failed to present them to the VA as part of the administrative claim process. Accordingly, the Court grants Defendant’s motion to dismiss with respect to these claims. The Court also concludes that Claim 2 is time-barred under the FTCA’s two-year limitations period. Thus, the Court grants Defendant’s motion to dismiss as it applies to Claim 2. Finally, the Court finds that Plaintiff failed to sufficiently state a cause of action for Claim 7(b). Accordingly, the Court grants Defendant’s Motion to Dismiss with respect to Claim 7(b). Nevertheless, for the purposes of deciding Defendant’s motion to dismiss in a manner consistent with the Court’s duty to liberally construe pro se pleadings, the Court finds that Plaintiff has sufficiently alleged a medical malpractice cause of action for Claims 1 and 3. The Court therefore denies the motion to dismiss as applied to these claims.”
Source Smith v. United States, Case No. 6:23-cv-00078.
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