Noteboom The Law Firm

Paralyzed Veteran Misses Deadline For Malpractice Claim Against VA

September 24, 2010 - A Tampa, Florida man recently attempted to sue The Department of Veterans Affairs (VA) James A. Haley Veterans' Hospital (JHVH) in Tampa, Florida for medical malpractice. His claim was barred, however, because he waited too long to file.  

Sam McCullough was shot in the abdomen in Vietnam, in 1973. That gunshot wound has caused him chronic pain as he has aged. McCullough scheduled an elective surgery to fix a hernia on February 10, 2004 at the JHVH. On February 7, 2004 McCullough went to the JHVH suffering from neck and upper back pain. He was diagnosed with muscle strain by the attending ER physician and sent home.

McCullough returned to the JHVH on February 9th complaining his back pain was getting worse. This time he was given a pain reliever before he was sent home. McCullough took himself to St. Joseph's Hospital on February 12th (after having his hernia operation) complaining of fever and paralysis in his limbs. He was diagnosed with a spinal abscess. Eight days later McCullough was a quadriplegic.

McCullough's lawyers requested his medical records in April 2004. The end result was an independent physician coming to the conclusion that had the JHVH provided proper diagnostic care to McCullough on February 7^th or February 9th, they probably would have found his spinal abscess and McCullough's quadriplegia could have been avoided.

However, that physician did not come to that conclusion until March 6, 2006. McCullough's claim, which was filed on March 13, 2006, was denied because it was outside the 2 year statute of limitations window. McCullough then attempted to sue the United States, which was granted summary judgment my motion in District Court.

Upon review, the 11th Circuit Court agreed with the District Court's decision. The latest date to start the statute of limitations running would have been February 20, 2004. Why there was such a delay in filing the claim is unknown. McCullough will now live with his disability without compensation, and the medical malpractice suit against the doctors at the JHVH will never happen.