Kreisman Law Offices Professional Corporation
The U.S. Court of Appeals for the Seventh Circuit in Chicago has affirmed a district court’s order dismissing a medical negligence case brought against the Department of Veteran Affairs.
Jerome Augutis underwent reconstructive surgery on his right foot at Illinois’ Edward Hines Jr. Veterans Administration Hospital in July 2006. Because of complications during the surgery, the doctors amputated Augutis’s right leg below the knee on Sept. 22, 2006.
Augutis maintained that the amputation was the result of negligent treatment. He filed an administrative complaint with the Department of Veteran Affairs in July 2006. His claim was denied in September 2010 and Augutis filed a request for reconsideration in March 2011.
The Department of Veteran Affairs wrote to Augutis to tell him that although it had not finished reconsidering his claim, it was not possible for Augutis to file suit in the federal district court because of the lapse of time. The letter also noted that such a claim was governed by a combination of federal and state laws. The letter also pointed out that in some states the statute of repose may limit or bar a lawsuit.
The department formally denied his request for reconsideration in October 2011.
On April 3, 2012, Augutis filed a lawsuit in federal district court. At this point, it had been more than five years since the alleged medical malpractice occurred, but less than six months since the denial of reconsideration by the department.
The Justice Department moved for the dismissal on the grounds that Illinois law required medical-malpractice claims to be filed within four years of the date of the malpractice. The district court granted the motion to dismiss and Augutis appealed.
In the appellate court’s decision, it pointed out that claimants must bring their claims to the appropriate government agency within two years of the date that the claim accrued in order to take advantage of the limited waiver of sovereign immunity provided by the Federal Tort Claims Act (FTCA).
If the governmental agency fails to make a final disposition within six months of the request, the claim is considered denied and the claimant is then allowed to file suit in the federal court. Alternatively, the claimant can give the agency more time to resolve the claim. If denial eventually occurs, the claimant then has another six months in which to file his or her lawsuit.
However, the panel continued, because the FTCA’s jurisdictional grant covers only circumstances for a private person, where the United States would be liable to the claimant in accordance with the law of the state where the act occurred, substantive tort law of the state may act to bar the suit.
Under Illinois law ILCS 5/13-212(a) and the case of Orlak v. Loyola Univ. Health System the court of appeals stated that Illinois courts have consistently construed the four-year limit on medical-malpractice claims as the statute of repose and therefore, a substantive limit on liability not a procedural bar to suit.
Augutis argued that the four-year limit was not substantive law because Illinois allowed the limits to be tolled by fraudulent concealment, while statutes of repose traditionally begin to run regardless of discovery.
The court rejected that argument noting that Illinois courts have recognized the logical inconsistency in tolling the four-year limit in cases of fraudulent concealment, but nevertheless, still treated the limit as a statute of repose.
In addition, Augutis maintained that even if the Illinois statute, Section 2-12, was a statute of repose, it was pre-empted by the FTCA’s procedural scheme.
The court of appeals rejected that item stating that the FTCA does not expressly pre-empt a state’s statute of repose and does not impliedly pre-empt state substantive law, but rather expressly incorporates it.
Accordingly, the U.S. Court of Appeals affirmed the federal district court’s dismissal because Augutis could have satisfied the requirements of both the state and federal law by filing the lawsuit earlier.
Jerome Augutis v. United States, No. 12-3536 (October 9, 2013).
Kreisman Law Offices has been handling medical negligence cases and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Buffalo Grove, Palatine, Park Ridge, Norridge, Harwood Heights, Oak Park, Cicero, Bedford Park, Evergreen Park, Blue Island and Chicago (Englewood), Ill.
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