Court: Widow Waited Too Long To Sue VA For Delays In Husband’s Care

A federal appeals court said a Navy widow waited too long to sue the Department of Veterans Affairs over the care of her husband, who died of kidney-related ailments one week before he was scheduled to begin dialysis treatments. (Photo by Chad Garland/Cronkite News)

By Pat Poblete

WASHINGTON – A Navy widow whose husband died from kidney disease cannot sue the Veterans Affairs medical center that delayed his treatment, only to send a letter two weeks after his death urging him to seek immediate care.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Monday that Felisa Tunac waited too long to file a negligence claim in the 2009 death of her husband, Randy, who died a week before VA officials said they would be able to get him in for dialysis.

According to court documents, Randy Tunac was first diagnosed with lupus nephritis – a kidney inflammation – while on deployment with the U.S. Navy in 1995. Before that deployment ended, he was medically retired from the Navy but continued receiving treatment for lupus at the Carl T. Hayden VA Medical Center.

In 2009, a private physician who was treating Tunac for a cardiac condition told him to make an immediate appointment at the VA after blood tests showed signs of kidney failure. But the VA told Tunac it could not get him an appointment until October or November of that year.

It was not until Dec. 2, 2009, that Tunac was seen at the medical center, when a biopsy confirmed he had reached end-stage kidney disease and needed dialysis. But he was told the VA could not schedule the dialysis procedure until Dec. 30.

A week before that appointment, Tunac collapsed at work and died of respiratory failure stemming from his kidney disease, court documents show. The medical center sent a letter to Randy Tunac on Jan. 14, 2010, telling him he required immediate treatment or could face “end-stage kidney disease and even death.”

Felisa Tunac filed a complaint in 2015, claiming wrongful death and negligence/medical malpractice. She took her case to the courts after the VA denied her claim.

The VA challenged the ability of the courts to even hear the claim, saying that the Veterans Judicial Review Act limits appeals of veterans’ benefits claims to U.S. Court of Appeals for the Federal Circuit.

The 9th Circuit panel agreed with a district court, which said the VJRA applies to questions of benefits administration, but that claims of negligent performance by a VA doctor could be considered by courts under the Federal Tort Claims Act.

Unfortunately for Tunac, that act has a two-year statute of limitations and the court said she did not file her claim until more than five years after her husband’s death.

Tunac argued that she only became aware of problems at the VA in 2014, after seeing media reports on “gross mismanagement and unacceptable wait times” at the Hayden center that contributed to veterans’ deaths. But the circuit court rejected that argument, saying Tunac “knew or should have known that the VA’s failure to provide timely treatment caused” her husband’s death, and the clock started then.

“Tunac’s claim accrued when she knew that the medical center’s failure to treat her husband and to provide adequate follow-up care caused her husband’s death, not when she learned that the delays were caused by actionable negligence,” said the opinion by Circuit Judge Sandra Ikuta.

Veronica Manolio, the attorney who represented Tunac, said Monday that she had not had a chance to talk with her client, so could not say what steps they might take next. Manolio said it is possible that Tunac could pursue the case under the VJRA in the Court of Appeals for Veterans Claims, but that timeliness might also be an issue there.

The U.S. Attorney’s Office for Arizona did not respond to requests for comment on the case Monday.

9 Comments

  1. I agree. I was diagnosed with a serious cardiac condition which placed me in the emergency room of a local hospital which pulled my VA records and discovered it was diagnosed a year earlier. Because I now am on SSN disability, lost myTricare and the VA only sees me twice a year and tells me because I control my A1C, I don’t need regular follow ups to monitor my type 2 diabetes. Taken me off the only medication that kept my weight and sugar under control

  2. The VA healthcare system has a lot of problems with the first being the VA was opened to all Veterans service connected or not without being fully funded for them. Then the fact no two VA’s are the same in staffing, equipment or healthcare so you get better care at one, and not the other.

  3. One only has to look back and remember this incident wasn’t the result of an inability to see him, instead it was a cold and calculated deliberate willful denial of treatment of care crafted by VA staffers who perfected the art of killing vets by the withholding of access to available care.
    The addition of “outside care” benifits has greatly enhanced and streamlined the access to needed care.
    But we shouldn’t forget while Randy Tunac placed himself in harms way and fought for his country, his county didn’t fight for his life, he didn’t die from the complications of kidney failure, no Randy Tunac died from neglect.
    Its beyond shameful that our pathetic excuses of elected officials and bench warning judges have time to justify and undermine the flagrant violation of existing immigration laws but can’t be bothered to ensure that “real citizens” like Randy get the care they earned, instead he needlessly died waiting, lost in limbo waiting for care and hope in a sea of indecision, despair and incompetence. Randy would have received his life saving urgently needed care if he was a criminal alien on AHCCCS, but since he wasnt, he was deneid the care that he paid into for criminal aliens via his tax dollars. Those at the VA who’s greatest attribute was collecting a check should simply be shot.
    RIP Randy, thank you for your service. While you did your duty, your country was derelict in theirs.

    The Oracle

    • Oracle, wish I could say – Medicare at hospital X-Y or Z is any better, I don’t believe that’s the case much of the time. The hospitals are there to process you, if your not being poked, cut, bleed, X-ray’d or by some other invasive means being processed your cured! Insurance time’s up, ding! your out right then, regardless of day time – location – condition – nothing matters but the money, when the clock runs out YOU ARE DONE – CURED OR OTHERWISE. The system of ‘hospitalist’ is the worse thing that could have happen to medicine – your doctor is not your doctor is some guy with a 19 letter last name you have never seen before, with any luck will never see again if you survive this initial meeting in which you have entrusted them with your life – the bedside manner of which is driven by that same dollar that will kick you out when the bell goes ding. Better than the VA? The clerks run medicine at the VA, pills, appointments, admission or discharge, information or any processing to be done… it’s the clerk. The clerk ‘gate keeper’ that holds your life in your hands if you know no better… any better either day or way. Not a good situation…

      • I’m my best advocate at the VA. Shockingly my shyness isn’t one of my better attributes.
        Randy Tunac never got their respect at the VA, but he never should have been subjected to their disrespect. And that disrespect resulted in his death.
        As combatants, we don’t leave people behind, did we really bring Randy home to let him die from neglect?
        A stay dog would have gotten better care, and if he didn’t, well those responsible would have been held accountable in court, but not the VA.
        Randy deserved better.

        The Oracle

        • my point is the care in a ‘civilian hospital’ is now about the same – buyer and user beware! Is the VA more dangerous – depends on where you are within that system – what you are allowing them to do. The most dangerous of this is exactly what happen to him, he/they didn’t know their own situation and he died as a result of it. Both sides of medicine are quite good at not saying ‘what is what’… often till death or never.

  4. I hope this gets appealed to SCOTUS and they hear the case. I am glad I no longer have to use the VA for my treatments. They have really gone downhill since I last used them 15yrs ago

  5. you don’t know what you don’t know, you depend on what you are told by the system, if that is ‘nothing’ you assume that is the course – and the cardiologist didn’t see this train coming? The symptoms of kidney failure are very pronounced – it happens that denial – it’ll be better tomorrow does happen. We know not the number of our days, keep the lamp full.

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