Delay in Reviewing Medical Records Kills VA Hospital Malpractice Lawsuit

Tampa, FLAn attempt by a plaintiff to launch a VA hospital malpractice lawsuit was derailed by the statute of limitations—although it is unclear, according to a report, why it took longer than two years to acquire and examine medical records that would have been used as the foundation for the lawsuit.

The September 2010 issue of Hospital Litigation Reporter details the unfortunate set of circumstances that befell Sam McCullough, a soldier who was wounded while serving in 1973. His wounds, resulting from a gunshot to the abdomen, caused him chronic pain as he aged.

As reported, his troubles coincided (but were not linked) with a scheduled hernia repair surgery for February 10, 2004 at James A. Haley Veterans' Hospital (JHVH) in Tampa, Florida. Three days prior to his surgery, McCullough showed up at JHVH complaining of neck and upper back pain. According to the report, the attending ER physician diagnosed muscle strain and McCullough was released.

Two days later (and one day prior to his scheduled surgery), McCullough returned with what he described as worsening back pain. He was given a pain reliever and again sent home, only to return the next day for his scheduled elective surgery on February 10, 2004.

On February 12, just a couple of days following his hernia repair at JHVH, McCullough was back at hospital—but this time at St. Joseph's Hospital with symptoms of fever and paralysis in his limbs. Doctors there diagnosed the veteran with a spinal abscess. Eight days after his arrival at St. Joseph's, McCullough was diagnosed with quadriplegia.

After consulting VA medical malpractice lawyers, McCullough's medical records were requested from the VA hospital in April of that year—just weeks after his diagnosis. A physician, upon reviewing the records, concluded that if the VA hospital had provided appropriate diagnostic and medical care on either the February 7 visit or the February 9 visit, the spinal abscess more likely than not would have been detected, and the quadriplegia avoided.

However, that conclusion was not issued until March 6, 2006, more than two years after the event. The plaintiff submitted an administrative claim on March 13, but the claim was denied as untimely. The plaintiff then went after the United States, which in turn moved for summary judgment and was granted the motion by the district court.

The Eleventh Circuit Court agreed with the District Court's finding that the statute of limitations precluded the plaintiff's action. The clock, as it were, would have started running no later than February 20, 2004. By the time the physician reviewer issued his review and conclusion on March 6, 2006, the two-year statute had already run out.

The reason for the two-year delay in reviewing McCullough's records was not identified. The end result, however, was that a potential veterans medical malpractice lawsuit was derailed, and a wounded veteran made to suffer without compensation.