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Eleventh Circuit reverses district court dismissal of veteran’s medical negligence complaint against the VA

On July 29, 2021, in Smith v. United States of America, No. 11365, the Eleventh Circuit Court of Appeals reversed, in part, a district court dismissal on jurisdictional grounds of a medical negligence lawsuit filed under the Federal Tort Claims Act (“FTCA), 28 U.S.C. § 1346(b). The plaintiff claimed that various medical professionals working for the Department of Veterans Affairs (the “VA”) breached their legal duty to exercise ordinary medical care and negligently failed to diagnose his throat cancer and immediately treat it. The district court granted the government’s motion to dismiss the plaintiff’s complaint for lack of subject matter jurisdiction, concluding that its judicial review of his claims was precluded by the Veterans’ Judicial Review Act (“VJRA”), 38 U.S.C. § 511(a), which restricts judicial review of “questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.” 38 U.S.C. § 511(a). In a lengthy decision which canvassed precedents from federal appellate courts around the country, the Eleventh Circuit noted that the allegedly negligent conduct at issue involved both a failure by VA administrative personnel to authorize treatment by non-VA health care providers and a negligent failure by VA health care providers to diagnose the plaintiff’s condition based on the treatment that was given. The Eleventh Circuit concluded that the former claims fell outside the district court’s subject matter jurisdiction because under § 511(a), a veteran’s entitlement to benefits can be reviewed only by administrative appeal to the Board [of Veterans Appeals, then to the Court of Veterans Appeals, the Federal Circuit Court of Appeals, and the Supreme Court. Regarding the latter claims, alleging negligence in treatment rather than a denial of benefits, the Eleventh Circuit concluded that the trial court erred in dismissing the complaint: “Regardless of whether the VA’s medical professionals and their supporting personnel responsible for providing, coordinating, and managing Mr. Smith’s care chose to treat Mr. Smith’s condition within or without the VA, they had a duty to adhere to the standard of medical care for diagnosing, treating, and managing a patient with Mr. Smith’s serious condition, and Mr. Smith’s complaint alleges that they did not do so.