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Tunac v. United States

United States Court of Appeals, Ninth Circuit

July 30, 2018

Felisa Tunac, on behalf of herself and as the Personal Representative of the Estate of Randy Tunac (Veteran), Deceased, Plaintiff-Appellant,
v.
United States of America, Defendant-Appellee.

          Argued and Submitted March 16, 2018 San Francisco, California

          Appeal from the United States District Court No. 2:16-cv-00982-ROS for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding

          Veronica L. Manolio (argued), Manolio & Firestone PLC, Scottsdale, Arizona, for Plaintiff-Appellant.

          Adam R. Smart (argued), Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Defendant-Appellee.

          Before: Richard A. Paez and Sandra S. Ikuta, Circuit Judges, and Lynn S. Adelman, [*] District Judge.

          OPINION

         SUMMARY[**]

         Federal Tort Claims Act

         The panel affirmed the district court's dismissal of a surviving spouse's suit against the United States under the Federal Tort Claims Act ("FTCA") for wrongful death and negligent malpractice.

         The complaint alleged that a medical center operated by the Department of Veterans Affairs (VA) caused Randy Tunac's death by delaying urgently needed medical treatment.

         The panel held that it had jurisdiction to the extent that the complaint alleged negligence by VA healthcare workers (defined as medical professionals and related support staff listed in 38 U.S.C. § 7316(a)(2)). The panel further held that the claims regarding negligence in VA operations must proceed under the congressionally-mandated pathway set forth in the Veterans' Judicial Review Act, and any appeal could only be heard by the U.S. Court of Appeals for the Federal Circuit.

         The panel held that to the extent there was jurisdiction, those claims were barred by the FTCA's statute of limitations. The panel concluded that the two-year statute of limitations had long run when plaintiff filed her administrative claim, and her claims were barred by 28 U.S.C. § 2401(b). The panel further held that plaintiff's claim could not be equitably tolled.

          OPINION

          IKUTA, CIRCUIT JUDGE.

         This appeal raises the question whether we have jurisdiction over a claim alleging that a medical center operated by the Department of Veterans Affairs (VA) caused Randy Tunac's death by delaying urgently needed medical treatment. We conclude that to the extent the complaint alleges negligence by VA healthcare employees (defined as medical professionals and related support staff listed in 38 U.S.C. § 7316(a)(2)), we have jurisdiction under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. The complaint's claims regarding negligence in VA operations, however, must proceed under the congressionally-mandated pathway set forth in the Veterans' Judicial Review Act (VJRA), Pub. L. No. 100-687, 102 Stat. 4105 (1988), and any appeal can be heard only by the United States Court of Appeals for the Federal Circuit, see 38 U.S.C. § 7292. To the extent we do have jurisdiction, the claims are barred by the FTCA's statute of limitations.

         I

         Felisa Tunac, the surviving spouse of Randy Tunac, brought suit against the United States pursuant to the FTCA, for wrongful death and negligent malpractice. According to the complaint, Randy Tunac began a six-month deployment with the U.S. Navy in 1995. Before completing his deployment, he was diagnosed with lupus nephritis, otherwise known as kidney inflammation, and was medically retired from the military. After retirement, Randy Tunac continued to receive treatment for lupus at the Carl T. Hayden VA Medical Center in Phoenix, Arizona, but saw a private physician for separate cardiological issues. In 2009, Randy Tunac's private physician ordered him to make an appointment immediately at the VA medical center after his blood test showed signs of kidney failure. Randy Tunac promptly contacted the VA medical center, but was told that it could not schedule him for an appointment until October or November 2009.

         Randy Tunac was finally seen at the medical center on December 2, 2009. A biopsy of his kidney confirmed that he had reached end-stage kidney disease, necessitating dialysis. However, the VA could not schedule dialysis immediately, and set his next appointment for December 30, 2009. Seven days before his appointment, Randy Tunac collapsed at work and was rushed to St. Joseph's Hospital, where he was pronounced brain-dead on arrival. Randy Tunac passed away on December 27, 2009 from respiratory failure stemming from renal failure. On January 14, 2010, the VA medical center sent a letter addressed to Randy Tunac notifying him that his active lupus nephritis required immediate treatment or would result in "end stage kidney disease and even death."

         In May 2014, Randy Tunac's widow, Felisa Tunac, saw media reports that gross mismanagement and unacceptable wait times at the Hayden VA Medical Center were contributing to otherwise preventable veteran deaths. After further investigation, she learned that an internal audit of the VA's operations confirmed the VA's negligence in follow-up, care coordination, quality, and continuity of care for its veteran patients.

         Felisa Tunac filed an administrative claim with the VA on April 17, 2015. After the VA denied her claim on October 8, 2015, she brought this action in district court. Her complaint includes two counts: wrongful death and negligence/medical malpractice. For the first count, the complaint alleges that the VA and its employees caused Randy Tunac's death by failing to provide him with "adequate follow-up care and treatment to monitor Randy's condition and identify any potential relapses or adverse changes to his health"; "[f]ailing to schedule Randy for immediate (or even timely) treatment after the deterioration of his condition, as evidenced by his blood work in 2009"; and "[f]ailing to schedule Randy for immediate dialysis after the results ...


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