Legal Question in Federal Tort Claims in New York

malpractice against VA- NYS

We just found out that two screws that were put in my husband foot by the VA were to long and have ruined the joint that the end of the screw was rubbing against. The surgery was done in 2005 but he has been actively trying to resolve his foot pain since 2006. Does the two year limit apply to him if we have been trying to work with the VA to resolve his pain. We are located in upstate NY. Please advise us if you can.

Asked on 6/10/08, 10:05 pm

3 Answers from Attorneys

Stephen Petix Quinton & Petix

Re: malpractice against VA- NYS

If you just found out that the cause of your husband's pain was due to medical error (the use of screws that were too long), and if the VA had previously told you this was a normal after-effect of such surgery, you may have a good chance of avoiding the 2-year statute of limitations

Some federal courts have applied a "continuous treatment" theory, where the patient is seeing the same doctor and there is a confidential relationship, and hold that the 2-year limitation period does not begin to run until the treatment by that doctor ceases. But some federal courts have refused to apply that theory.

All federal courts, however, must apply the delayed discovery rule for medical malpractice claims under the Federal Tort Claims Act. This means that the 2-year limitations period will not begin to run until the patient discovers that he has been injured by medical treatment. Once the injury is discovered, however, the two-year limitations period begins to run and the patient must investigate whether the medical treatment was negligent, and if so, must present his administrative claim for damages to the federal agency (in this case the VA), before the 2-year period runs out.

From what you say, it appears that you and your husband just recently discovered that your husband had been injured by medical treatment, and that may well be sufficient to fall under the delayed discovery rule.

Alternatively, if the VA has actively deceived your husband as to the true nature of his condition (for instance, falsely claiming that his pain is a natural consequence of proper surgical procedures, whereas it appears it was due to negligent use of the wrong sized screws), you may pursue the theory of equitable tolling of the statute of limitations, which has been applied where government officials have misled individuals and thereby caused them to miss filing deadlines in reliance on such false information.

Contact a lawyer familiar with NY medical malpractice law and with the Federal Tort Claims Act as soon as possible.

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Answered on 6/19/08, 7:49 pm
Anthony Colleluori The Law Offices of Anthony J. Colleluori & Associates PLLC

Re: malpractice against VA- NYS

It depends but I wouldn't wait to find a lawyer. There is a concept of continued therapy which can increase the time you have to sue. You may have other claims that you can file as well. Get into the big city and find a GOOD lawyer. You will need one.

Good luck

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Answered on 6/10/08, 11:15 pm
Carlos Gonzalez Gonzalez Legal Associates PLLC

Re: malpractice against VA- NYS

You very well may have a claim, one which may be taken on a contingency basis at that...

contact us for a free phone consultation regarding this matter, you may reach us at 22.709.8303 or listen to our free podcast at

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Answered on 6/11/08, 8:02 am

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