Suit Revived for Widow|of Turned-Away Veteran

(CN) - The widow of a Marine who killed himself after two clinics for veterans turned him away may have a case against the government, the 6th Circuit ruled.

Cameron Anestis had returned home to Lexington, Ky., in April 2009 after an eight-month tour of duty in Iraq. A change in the Marine's behavior was apparent, however, and his family became concerned about his declining mental health. On Aug. 16, Anestis broke down and told them that "he had been involved in a horrific incident in Iraq involving the killing of a civilian family," according to the ruling.

Anestis visited a clinic run by the Department of Veterans Affairs the next day, but a clerk turned him away despite recognizing that he was suicidal. Because a mental health professional was not available at the clinic, the clerk sent Anestis to another facility.

The second clinic also turned Anestis away, however, because he did not bring a copy of his DD-214 form to verify his service in the U.S. military.

While trying to search for the form at home, "Cameron became frustrated, got into an argument with his wife, and quickly lost control," the decision states. "Cameron choked and threatened to kill her, but after a struggle, Tiffany Anestis was able to escape and call 911. While she was on the phone with 911, she heard a gunshot, and discovered that her husband had committed suicide."

In her ensuing complaint against the United States, Tiffany Anestis alleged that the turning away of her suicidal husband violated standards of medical care.

A federal judge in Louisville nevertheless dismissed the case for lack of jurisdiction. Finding that the case involves a VA benefits determination, the judge said that the Veterans Judicial Review Act precludes jurisdiction.

The Cincinnati-based federal appeals court reversed on April 18, agreeing with the widow that her "claim is most properly characterized as a non-benefits tort claim that would not require the district court to review any VA benefits decisions."

"VA policy required its facilities to provide medical care to anyone in urgent need of assistance, even if the individual was ineligible for benefits or did not present a hard copy of his DD-214, or was not even a veteran," Judge David McKeague wrote for a three-member panel. "Anestis does not argue that Cameron should have been eligible for VA benefits; instead, Anestis argues that the VA violated standards of medical care and its own policies by refusing treatment when Cameron presented himself at two VA facilities in a state of emergency. Thus, Anestis's claim exists wholly independently of a need for any benefits determination."

The United States next claimed that an exception to the Federal Tort Claims Act also precluded federal jurisdiction, but the appellate panel sided with Anestis on this point as well.

"The government has failed to show that the actions of the VA employees, regarding Cameron's emergency situation, satisfy the two-part test of the discretionary function exception to the FTCA," McKeague wrote. "Because the exception does not apply here, it does not preclude the district court from exercising subject matter jurisdiction over Anestis's claim."

The two-part test focuses on whether the employees' actions involved "an element of judgment or choice," and if it did, whether that judgment is protected under the exception. Here, the VA's open-door emergency policies were mandatory rather than discretionary, and the discretionary function exception applies only to public policy, not a patient's health, the court found.

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