Crime and Justice

Feds seek dismissal of veteran’s suit against VA in misdiagnosis of cancer

Wesley Black testifies before the Vermont Legislature on Feb. 26, 2019. Black has colon cancer after serving with the Army overseas near garbage burn pits. File photo by Mark Johnson/VTDigger

This story by Anna Merriman was published by the Valley News on Aug. 10.

WHITE RIVER JUNCTION — The federal government is seeking to dismiss a $17.5 million medical malpractice lawsuit brought by veteran Wesley Black against the White River Junction VA Medical Center, arguing the complaint was filed a year too late.

But in a response this month, Black disagreed, saying that he only recently learned that his doctors at the VA misdiagnosed his colon cancer, allowing the long-undiagnosed disease to become terminal.

The government’s motion, filed last month, and Black’s response follow a complaint the veteran of the Iraq and Afghanistan wars brought against the VA in February.

In the lawsuit, Black said he had first gone to the medical center in 2013 after experiencing intestinal issues, and doctors told him he had irritable bowel syndrome without ordering any tests. In 2014 and 2016, when the pain did not go away, he returned to the facility but got the same diagnoses, according to the suit.

It wasn’t until February 2017, when Black was taken to the emergency room of the VA Medical Center with rectal bleeding, that doctors ordered a colonoscopy and found he had stage 4 colon cancer, according to the lawsuit.

A year later, in 2018, Dr. Thomas Abrams, a physician with the Gastrointestinal Cancer Center of the Dana-Farber Cancer Institute in Boston who ultimately assessed Black on a referral from the VA after his ER visit, wrote a letter that his IBS symptoms were actually early signs of cancer that developed as a result of Black’s exposure to burn pits while on tours with the National Guard.

That letter prompted Black to file the lawsuit against the VA, saying that their negligence in improperly diagnosing him kept him from getting appropriate treatment earlier, and allowed the cancer to develop to a now-terminal state.

But Assistant U.S. Attorney Julia Tori, who is representing the VA, argued in her July motion that the lawsuit is moot because Black filed it a year too late.

Under the Federal Tort Claims Act, Black would have had to file the lawsuit within two years of his injury.

Much of the battle between the government and Black’s attorneys now comes down to identifying when Black was “injured” by the VA, meaning when he realized he had been misdiagnosed with IBS.

In her motion, Tori argued that Black knew — or should have known — he had been originally misdiagnosed soon after receiving the correct diagnosis for colon cancer in 2017. As a result, she wrote, Black should have filed his lawsuit within two years of getting the colonoscopy at the ER.

In February 2017 “Black had all of the critical facts that would have prompted a reasonable person to investigate whether his advanced cancer should have been caught sooner by the medical providers,” she wrote.

But Black, through his attorney Arend Tensen, argued that he didn’t know the IBS diagnosis was incorrect until 2018, when he received the letter from Dr. Abrams. Instead, he thought he had both IBS and colon cancer, according to the documents.

Because of that, Tensen argued in the objection this month, Black’s lawsuit still fits within the two-year mark if the moment of “injury” is the moment he received Dr. Abrams’ letter.

“Mr. Black did not, and a reasonable person in his position would not, immediately upon diagnosis, track his illness back nearly four years and instantly determine that … this was the same condition he had when he was treated by the VAMC in July of 2013 …” Tensen wrote as part of an argument in the objection.

While much of the argument revolves around whether the lawsuit makes the two-year mark for a Federal Tort Claim, Tori also took issue with other sections of Black’s lawsuit.

In her motion she wrote that Black’s claim seeking damages for his family due to his eventual death is premature, adding “they cannot seek damages stemming from an anticipated death.”

But Tensen disagreed, writing in his opposition that, whether Black’s family seeks damages while he is alive or once he has died, “justice will not be denied.”

If he dies before his family receives compensation, “Mr. Black will be deprived of his ability to rest peacefully knowing his rights and that of his family have been vindicated — again victim of government delay,” Tensen wrote.

A date to hear the motion and objection has not been set.

Anna Merriman can be reached at [email protected] or 603-727-3216.

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