Bureaucracy Won't Kill Veteran's Tort Claims

     (CN) - A federal judge rebuked the government for trying to tank a veteran's tort suit based on the five-year delay to proceedings caused by its own inaction.
     The dispute stems from a dose of intravenous calcium chloride administered to Calvin Cooper at the Philadelphia Veteran's Hospital emergency room on June 29, 2005.
     Cooper claimed that his "known IV access difficulties" made him a poor candidate for such treatment, which wound up damaging his arm tissue and giving him compartment syndrome, defined in the ruling as painful, abnormally high pressure in the area surrounding the muscles.
     The veteran said he has had to undergo surgery and still suffers from "permanent impairments" in the use of his right arm.
     Cooper allegedly filed an administrative complaint with the Department of Veterans Affairs (VA) on June 25, 2007, in compliance with the Federal Tort Claims Act.
     Noting that it had six months to investigate the claim, unless Cooper's counsel granted more time, the VA in turn requested additional information, Cooper said.
     The investigation ultimately lasted over five years, he added, noting that he heard nothing from the agency for two years after granting it a three-month and a 30- to 60-day extension in 2008.
     On Dec. 30, 2010, the VA allegedly admitted to Cooper that "no action was taken to complete my investigation" since 2008 and requested a 90-day extension and expert reports.
     Cooper claims that, upon granting those requests, he requested a decision within 45 days of July 15, 2011, but the VA asked for another extension over two months later.
     The agency finally denied Cooper's claim on July 17, 2012, advising that he could file suit in federal court "within six (6) months," though "[s]ome state laws may limit or bar a claim or lawsuit."
     When Cooper filed suit on Dec. 28, 2012, the government moved to dismiss on the basis of Pennsylvania's seven-year statute of repose.
     U.S. District Judge Mitchell Goldberg denied the motion last week.
     "Here, the government was on notice of the claim within two years of the allegedly wrongful conduct," Goldberg wrote. "Medical records were obtained, witnesses could have been interviewed, and experts were apparently consulted. The government cannot claim it was surprised by plaintiff's lawsuit, as it was presented with the claim more than five years before the complaint was filed. It was only through the VA's foot-dragging in the handling of this claim that the case was not filed until more than seven years after plaintiff suffered his injury.
     "Indeed, it would also be particularly unfair to apply the statute of repose to plaintiff's claim," the judge added. "The VA repeatedly asked for - and was granted by plaintiff's counsel - extensions to complete administrative review. At one point, it appears that the VA forgot about plaintiff's claim, and did nothing to resolve it for a period of two years. Though there is no reason to conclude that the VA was acting in bad faith, its delay does highlight that application of state statutes of repose under these circumstances might encourage federal agencies to 'delay notices of denial in order to allow the statute of repose to extinguish a plaintiff's claim.'"
     Cooper met all necessary deadlines, according to the ruling, which notes that he filed his initial claim within the FTCA's two-year statute of limitations and the state's seven-year statute of repose, and sued within six months of the final denial of his claim, as required by the FTCA.
     "The fact that plaintiff's complaint was filed more than seven years after the date of plaintiff's injury is immaterial," Goldberg wrote. "Plaintiff's complaint complied with the time limitations of the FTCA, and is therefore timely."