Casey v. U.S.

• Decision Date: 09 April 2001
• Docket Number: No. CIV. 3:95CV1949(HBF).,CIV. 3:95CV1949(HBF).
• Citation: 161 F.Supp.2d 86
• Court: U.S. District Court — District of Connecticut
• Parties: Robert CASEY,<SMALL><SUP>1</SUP></SMALL> Plaintiff v. UNITED STATES of America, Defendant

161 F.Supp.2d 86

Robert CASEY,¹ Plaintiff v. UNITED STATES of America, Defendant

No. CIV. 3:95CV1949(HBF).

United States District Court, D. Connecticut.

April 9, 2001.

Matthew Auger, New London, CT, for Plaintiff.

Lauren Nash, New Haven, CT, for Defendant.

RULING ON PLAINTIFF'S MOTION FOR RECONSIDERATION

FITZSIMMONS, United States Magistrate Judge.

On September 13, 1995, plaintiff filed this action under the Federal Torts Claim Act ("FTCA"), alleging medical malpractice and negligence on the part of Veterans Administration ("VA") employees. On September 30, 1999, this court granted defendant's oral motion for judgment as a matter of law with respect to plaintiff's allegations that staff at the Newington Veterans Affairs facility was negligent in failing to provide him with Standard Form 95 ("SF 95") which was a prerequisite to bringing a medical malpractice suit against the United States. [Doc. # 66.] However the parties were directed to brief the question of whether, in light of the factual record presented at trial, the statute of limitations for filing a medical malpractice action was equitably tolled by the failure of a VA benefits counselor to properly advise plaintiff about the filing requirements for a medical malpractice action.² [See id. at 10.] Plaintiff's Memorandum of Law on Whether Statute of Limitations for Filing Medical Malpractice Claim Should be Equitably Tolled [Doc. # 72] is hereby construed as a Motion for Reconsideration of the Recommended Ruling on Defendant's Motion to Dismiss or for Summary Judgment [Doc. # 28]. For the following reasons, plaintiff's Motion for Reconsideration [Doc. # 72] is GRANTED, and the Clerk is directed to reopen the case for further proceedings in accordance with this ruling.

BACKGROUND

Robert Casey brought this action against the United States for injuries he allegedly received as a result of medical malpractice committed during and after surgery on his stomach at the West Haven Veterans Affairs Medical Center ("VAMC"). Plaintiff's first stomach surgery occurred at the VAMC on January 6, 1992, to treat his ulcer condition. [Doc. # 71, at 27.] After the surgery, plaintiff filed a claim for service connected disability benefits related to his condition, which was denied in April, 1992. [Doc. # 71, at 28.]

During this time, VAMC doctors told plaintiff that they discovered he had stomach cancer when they took a biopsy during the surgery to repair plaintiff's perforated ulcer. [See id., at 27.] The VAMC released plaintiff on January 16, 1992, on the condition that plaintiff return to the hospital on January 26, 1992, to have a second surgery to remove cancerous portions of his stomach. [See id.] After the second surgery, plaintiff was discharged from VAMC on February 8, 1992. [See id. at 33-34.] On February 9, 1992, plaintiff was rushed to Backus Hospital in Norwich, Connecticut by his mother and sister-in-law for acute peritonitis allegedly resulting from the second VAMC surgery.³ [See id. at 34.] Plaintiff was discharged from Backus Hospital on February 21, 1992. [See id. at 35.] Post-operative care relating to plaintiff's stomach surgeries continued for approximately one year following his release from Backus Hospital. [See id.]

In the spring of 1992, plaintiff learned that he did not have stomach cancer even though one-half of his stomach had been removed during the surgery. [See id. at 37-38; Pl. Exh. 6, Doc. # 73, Tab 10]. Plaintiff also learned that he was released from VAMC on February 8, 1992, even though his sutures had not healed properly and he had an infection in the membrane surrounding his stomach. [Doc. # 73, at tab 2.]

Following his discharge from Backus Hospital, and during his year long post-operative treatment at the VAMC, plaintiff claimed to have had numerous conversations with VA benefits counselors concerning his care at the West Haven facility. [Doc. # 71, at 37, 41, 42.] Plaintiff stated that Mr. Lou Turcio and Mr. Donald Dubrock⁴ both told him that he should sue the government because of the care he received at the VAMC during and after his stomach surgeries. Turcio testified that he had no personal recollection of discussing the possibility of plaintiff filing a torts claim against the government. [See id. at 124.] Turcio did recall overhearing Robert Begin⁵ start a conversation with plaintiff regarding filing the torts claim, but could not remember any specifics of the conversation. [See id. at 119.] Dubrock testified that he recalled conversations with plaintiff regarding plaintiff's dissatisfaction with the treatment he received from West Haven VAMC for his stomach surgeries and discussions about the possibility of plaintiff suing the government regarding his care. [See id. at 181.] However, although Dubrock remembered plaintiff asking his opinion as to whether he should sue the government, he said that he never advised plaintiff to do so. [See id. at 197.]

Plaintiff testified that initially he didn't want to sue the government because he didn't want to believe that his country committed any wrongdoing with respect to his treatment and because he was hoping to gain employment with a government contractor.⁶ At no point during these discussions with the plaintiff did any VA employee tell him how to file a claim against the government, provide the proper forms to him, or direct him to available resources to help him file suit against the United States. [See id. at 40, 41.] Plaintiff admitted that he did not ask for this information during those conversations. [See id. at 41.]

During the summer of 1992, plaintiff requested a mental health evaluation at the West Haven VAMC. [See id. at 43.] Plaintiff requested this evaluation because he was "full of rage and anger because [he] had found out [for himself]" about the quality of care he received from the VAMC. [Id.] Plaintiff's request that his mental health treatment be transferred to the Newington VAMC was granted and he received counseling services there through June, 1998. [See id. at 45.] Part of plaintiff's mental health treatment plan included alcohol abuse treatment. [See id. at 44.]

In spring of 1993, plaintiff was admitted to the West Haven VAMC for carpel tunnel surgery on his left hand. [See id. at 48.] As a result of this surgery, plaintiff filed a disability benefits claim in May 1993 for a two month, hundred percent temporary disability. [See id.] Plaintiff testified that benefits counselor Begin filled in all of the information on the form relating to the claim and he just signed it and filled in his address. [See id. at 49.]

Plaintiff had previously received care for his left wrist at the West Haven VAMC as a service related disability. After retiring from the Air Force, plaintiff received a ten percent disability rating for his left wrist. [See id. at 14.] In November 1989, plaintiff underwent surgery on his left wrist at the West Haven VAMC, which left him with a twenty percent disability rating in that wrist. [See id. at 17.] On each occasion when plaintiff filed for service connected disability benefits as a result of his wrist injury, the paperwork was filled out and he was guided through the process by Turcio. [See id. at 18.]

On June 23, 1993, plaintiff was admitted into the detoxification treatment program at the Newington VAMC after he resumed drinking alcohol.⁷ [See id. at 52-3.] After plaintiff completed the five day detoxification period, on June 29, 1993, he was evaluated by C. Jackson-White, a physician's assistant at the Newington VAMC. [See id. at 127.] Plaintiff testified that during this evaluation he told Jackson-White that he was "angry" about the care he received in connection with his stomach surgery at the West Haven VAMC and that Jackson-White suggested a couple of options to resolve plaintiff's anger, one of which was to go file a claim.⁸ [See id. at 54.] Plaintiff stated that after this conversation with Jackson-White he immediately went to see Robert Machia, the veterans benefits counselor at the Newington VAMC. [See id. at 59.]

Plaintiff testified that he went to Machia's office because he wanted to sue the government and believed that "it would be the only thing that would probably straighten [him] out a little bit, [by] tak[ing] away some of the rage and anger that [he] had." [Id. at 60.] Plaintiff stated that he told Machia that he wanted to sue the government for releasing him from the West Haven VAMC when the doctors there knew he had peritonitis. [See id.] Machia filled out a form for a service-connected disability claim, which plaintiff signed and dated. [See id. at 61-2.] Plaintiff testified that he questioned Machia as to why he was applying for service-connected disability when plaintiff knew that wasn't what he was asking for. [See id. at 64.] Plaintiff stated that Machia responded that the claim would be denied quickly and that it would help plaintiff out when he brought suit against the government. [See id.] Once the claim came back denied, plaintiff testified that Machia told him he would then see someone else to help him sue. [See id. at 65.] Plaintiff stated that at no point did any VA benefits counselors or other personnel tell him how to file a tort claim against the government, provide him with the necessary forms to bring a tort claim, or refer him to anyone who would be able to advise him on bringing suit against the government. [See id. at 72-74.]

Machia did not recall the details of his meeting with plaintiff, and based on the form he filled out he was unable to remember discussing plaintiff's right to file a tort claim with him. [See id. at 160.] Machia testified that he had never advised a veteran that he needed to file a disability claim prior to filing a tort claim, or that it would be advantageous to do so. [See id.] Machia also testified that he never provided tort claim forms to veterans and would refer those who wanted to pursue a torts claim against the government to the patients' advocate. [...