Tennessee Court rules against veteran in colonoscopy case

By Kristin M. Hall Associated Press NASHVILLE, Tenn. (AP) -- Years after thousands of veterans learned they may have been exposed to infections at government-run hospitals, many are still mired in legal battles seeking compensation from the Department of Veterans Affairs. In the latest legal setback, a federal appeals court has ruled against a Tennessee veteran who claims he contracted hepatitis B after employees at the Murfreesboro VA hospital negligently failed to properly clean colonoscopy equipment. The ruling could have an impact on similar lawsuits against the VA. The court found that Carl Huddleston's claim, filed more than three years after the procedure, came too late, even though he acted within months after he learned his health could have been endangered. The three-judge panel of the 6th Circuit Court of Appeals ruled last week. Huddleston was one of more than 10,000 veterans notified in 2009 that they needed to be tested for hepatitis B and C and HIV infection because of endoscopic cleaning mistakes at VA facilities in Murfreesboro, Tenn., Augusta, Ga. and Miami. The VA said in 2009 that 13 veterans tested positive for the Hepatitis B virus, 34 tested positive for Hepatitis C, and six veterans have tested positive for HIV. More than 6,000 of those veterans who were notified were treated at the Murfreesboro clinic, so the ruling could have an impact on other veterans seeking similar lawsuits in Tennessee. Huddleston's lawsuit says he contracted hepatitis B, which can cause damage to the liver and kidney problems, from an October 2006 colonoscopy. But the VA didn't inform him about the mishandling of the endoscopic equipment until February 2009, more than two years later. He filed an administrative tort claim, which is the first step to filing a medical malpractice lawsuit against the VA, in December 2009, about 10 months after learning he had contracted the disease. But a district court in Nashville ruled Tennessee law bars medical malpractice claims more than three years after the date of the negligent act, unless the plaintiff is claiming fraudulent concealment. The judges ruled that he missed the deadline to file a claim by just two months. Euel Kinsey, Huddleston's Detroit-based attorney, said he disagreed with the court's ruling because states set different limitations on when claims can be filed. "It seems to create an unequal application of the law because different states have shorter or longer statutes of repose," he said. Randy Kinnard, a medical malpractice attorney in Nashville who is not involved in the case, said Tennessee's statute of limitations is the shortest in the country. "Here, for medical malpractice, the claimant had at most three years after the negligence within which to perfect his claim, regardless of when he discovered that he had been injured wrongfully," Kinnard said. Georgia and Florida are in a separate federal court circuit than Tennessee, but Kinnard said the principles laid out by one circuit can influence another. In Florida, there is a four-year statute of repose except in cases of fraud or concealment, and Georgia law bars medical malpractice claims that are brought more than five years after the negligent or wrongful act or omission occurred. Huddleston's attorney argued that his claim was timely under federal tort laws and that the deadline clock should start when the VA first notified him about the problem, not in the previous years when he was unaware of the infection. Some of the colonoscopies that prompted a letter from the VA date back to 2003. VA officials have said there was no way to tell where the infections came from, but the VA said it would offer free medical treatment to all those affected. But few cases out of the hundreds that were filed have ever made it to a trial. Juan Rivera, a South Florida veteran who claimed he contracted HIV during an endoscopic colonoscopy at a Miami Department of Veterans Affairs hospital, agreed to a settlement out of court before it was set for trial, said his attorney, Ira Leesfield. Leesfield said these cases are difficult because of the multiple steps to prove that the VA was negligent in causing these infections. "I think there are still some cases out there where people have not been represented because they don't know their rights. A lot of people don't even think they can sue the VA," he said. Air Force veteran Robert Metzler and his wife sought $30 million in damages in one of the first trials held last year over the contaminated colonoscopy equipment. Metzler underwent a colonoscopy at the Miami VA hospital in 2007 that he said infected him with hepatitis C because the equipment was unclean. But 10 months later, the judge still hasn't issued a ruling in the case and there is no deadline for him to provide it. William Rieder, an attorney based in Coconut Grove, Fla., is waiting on a judge's ruling on a similar argument claiming time limits have expired in a case involving more than 120 veterans, including one who contracted HIV. Most of the veterans he is representing did not test positive for infection, but all are claiming emotional distress from learning they were possibly exposed to infection. Government attorneys are attempting to use the 6th Circuit ruling to bolster their argument in Florida, but Rieder said there are differing court opinions on this medical malpractice issue that he thinks will help them prevail in court. "In 2009 you find out that a procedure you underwent years ago could have infected you with a deadly virus, that you could have transmitted to your spouse and then the government tells you that your claim expires before you ever found out about it," he said. "That's not fair, that's not right." Published: Mon, Jun 4, 2012