Felisa Tunac, on behalf of herself and as the Personal Representative of the Estate of Randy Tunac (Veteran), Deceased, Plaintiff-Appellant,
United States of America, Defendant-Appellee.
and Submitted March 16, 2018 San Francisco, California
from the United States District Court No. 2:16-cv-00982-ROS
for the District of Arizona Roslyn O. Silver, Senior District
Veronica L. Manolio (argued), Manolio & Firestone PLC,
Scottsdale, Arizona, for Plaintiff-Appellant.
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
Before: Richard A. Paez and Sandra S. Ikuta, Circuit Judges,
and Lynn S. Adelman, [*] District Judge.
Tort Claims Act
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.
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.
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.
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
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.
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.
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."
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.
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 ...