Under the FTCA, medical malpractice suits may be brought against the United States within two years after a claim accrues. 28 U.S.C. 2401(b). According to the Fourth Circuit, medical malpractice claims accrue “when the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury.” Once a plaintiff has possession of the critical facts that he has been hurt and who inflicted the injury, the medical malpractice claim accrues. Put simply, if a plaintiff knows that some aspect of his treatment caused an injury, they must file an FTCA claim within two years, or else their claims are forever barred.
The United States District Court for the Western District of Virginia stated in its Memorandum Opinion and Order filed on October 17, 2025: “On February 11, 2016, Smith received lab results via letter from the Salem VAMC. Dkt. 64 at Ex. 6, US-0001803-05. This letter indicated his labs were “negative for urine protein,” and that they “look[ed] good.” Id. Despite this assertion, the labs showed a “sudden decline” in Smith’s “eGFR reading” and showed “a uACR of 44.6 when the normal range is (0-29)” indicating “protein in [his] urine.” Dkt. 6 at 1. Thus, after Smith received the February 11 letter, he “possess[ed] . . . the critical fact” that his kidneys were “hurt.” Kubrick, 444 U.S. at 122. Because of this letter, Smith was on notice that “some aspect of his treatment” had potentially “caused an injury.” Kerstetter, 57 F.3d at 364-65. As such, his February 2016 claim accrued once he received the letter.”
“On March 4, 2019, Smith received abnormal kidney labs. Dkt. 64 at Ex. 12, US-000720. His uACR was “191.3,” again indicating protein in his urine. Id. Because of these abnormal results, Smith was on notice that “some aspect of his treatment” had potentially “caused an injury.” Kerstetter, 57 F.3d at 364-65. Thus, his March 2019 claim accrued when he received his test results.”
“Smith filed his FTCA claim on April 4, 2022. Dkt. 17-1. Thus, any injury he alleges must have accrued on or after April 4, 2020 to be timely. 28 U.S.C. 2401(b). As analyzed above, both the February 2016 and the March 2019 claims accrued well before this date. Count I, therefore, is time-barred.”
“In Count III, Smith asserts that “the Salem VAMC failed to take [him] off medication that may have damaged [his] kidneys and worsened [his] declining kidney function in the years preceding [his] diagnosis of acute kidney injury.” Dkt. 78 at 1.3 The Government argues that this claim “accrued at the latest when Smith was diagnosed with chronic kidney disease in 2018. Count III’s accrual is difficult to evaluate as Smith never received an acute kidney injury diagnosis … Across all of Smith’s medical records, only one diagnosis of kidney disease exists—Salem VAMC Physician Assistant Glenn Gifford diagnosed Smith with chronic kidney disease on August 20, 2018. Dkt. 64 at Ex. 8, US-000351. While the Court construes Smith’s filings liberally, the Court cannot construe facts liberally. Therefore, the Court cannot interpret either the emergency room’s or the Salem VAMC’s diagnoses as acute kidney injury. As such, the Court interprets Count III as pertaining to medications prescribed before Smith’s diagnosis of chronic kidney disease in 2018.”
“Once Smith received a diagnosis of chronic kidney disease, he had actual knowledge that “some aspect of his treatment caused an injury.” Kerstetter, 57 F.3d at 364-65. Therefore, Count III accrued on August 20, 2018. Due to when Smith filed his FTCA claim, any injury he alleges must have accrued on or after April 4, 2020 to be timely. 28 U.S.C. 2401(b). Since Count III accrued well before this date, Count III is time-barred.”
Source Smith v. United States, Case No. 6:23-CV-78.
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