Seventh Circuit Rejects Argument That VA Delays Tolled Illinois Statute of Repose – Augutis v. United States

By October 11, 2013July 18th, 2019Medical Malpractice

I’ve written here many times about the importance of moving quickly if you’re considering an injury lawsuit against a government agency. Governments have “sovereign immunity” from lawsuits, which means they are sometimes immune from lawsuits, and in other cases, may create their own conditions under which they can be sued. In many cases, that means potential litigants have to exhaust an administrative remedy before they can file their claims. Unfortunately, that administrative remedy isn’t necessarily going to be exhausted before reaching the deadline created by the state in which the injury took place. That’s what happened to Jerome Augutis of Illinois, who alleged doctors at a Veterans Affairs hospital were forced to amputate his leg because of complications caused by substandard care. In Augutis v. United States, the Seventh U.S. Circuit Court of Appeals affirmed dismissal of his suit.
Augutis underwent reconstructive surgery on his right foot in July of 2006. He suffered complications, leading doctors to amputate his leg below the knee. In 2008, he timely filed an administrative complaint with the VA, which denied it in 2010. He filed a timely request for reconsideration in early 2011. Seven months later, the department wrote him to say it hadn’t completed consideration, but he could now file in federal court because a six-month window had passed. That letter noted that some state laws can bar suit. His claim was denied shortly after, and he filed an Illinois medical malpractice lawsuit in April of 2012. This was within six months of the federal dismissal, as required by federal rules, but more than four years after the alleged malpractice. That put the claim beyond the Illinois statute of repose for medical malpractice, leading the United States to request dismissal. The district court granted it, saying the Federal Tort Claims Act only permits suits to the extent that state law allows them.
Augutis appealed, arguing that the statute of repose is not substantive law in Illinois because it can be tolled by fraudulent concealment. But the Seventh Circuit said courts have still treated the statute as a statute of repose serving substantive rather than procedural goals. The court next rejected an argument that the FTCA preempts the Illinois statute of repose. The FTCA does not expressly say that it preempts state laws in the same area, the court said. Nor does it impliedly preempt state substantive law; it expressly incorporates state substantive law as a way to help determine the extent of the federal government’s liability. And there is no conflict between the two that could lead to preemption, the Seventh said, because it is not impossible for Augutis to comply with both. At any time after the first six months of the 26 months the VA considered his claim, the court said, Augutis could have filed his federal claim. It acknowledged that “the result was unfortunate” and Augutis might be frustrated by the slowness of the VA, but declined to find preemption.
This case shows how vital it is for plaintiffs with claims against government agencies to get the help of an experienced St. Louis personal injury attorney right away. Given the complicated administrative rules Augutis was following and the federal nature of the claim, he may not have realized he had to contend with a state deadline as well. An attorney who understands these rules can help you sort out which ones apply to your situation and ensure that you don’t miss your opportunity to sue, so the court will at least consider your claim on its own merits.


Carey, Danis & Lowe represents clients in southern Illinois and throughout Missouri who have suffered serious injuries through no fault of their own. To learn more about your rights and your legal options, call us today for a free consultation at 1-877-678-3400 or send us a message online.
Similar blog posts:
Many Medical Malpractice Victims Discouraged by Common Misconceptions
Bill to Reinstate Cap on Noneconomic Damages in Missouri Malpractice Cases Dies
Illinois Mother’s Lawsuit Against Federally Funded Clinic is Time-Barred – Arteaga v. United States