Macon woman’s wrongful death suit against VA hinges on federal judge’s decision

A federal judge is considering whether Georgia or Tennessee law should apply in a wrongful death lawsuit filed by the Macon widow of a man who received medical treatment from the U.S. Department of Veterans Affairs.

Assistant U.S. Attorney Aimee Hall argued at a Tuesday hearing that the case filed by Mary Jo McKinley earlier this year should be dismissed because the March 20, 2015, suit was filed outside the three-year window allowed by Tennessee law.

Howard McKinley, a U.S. Army veteran, was diagnosed with bladder cancer in 2010 while living in Tennessee.

After having two tumors surgically removed, McKinley underwent an abdominal CT scan Dec. 20, 2011, at a Nashville VA facility.

A radiology report in his medical file revealed a new mass, said Caroline Herrington, an attorney representing McKinley’s widow.

But, McKinley wasn’t informed of the report’s finding, she said.

Hall contends the three-year window should begin on the date of the scan.

McKinley moved to Macon where months later he was diagnosed with having metastatic bladder cancer Sept. 19, 2012, while receiving care at the Dublin VA hospital.

The cancer ultimately spread to his brain and the 66-year-old died Sept. 21, 2013.

Herrington argued Georgia law, which allows a five-year window to file suit, should apply to the case because McKinley’s untreated cancer spread while he lived in Georgia, he received further treatment in Georgia and his widow lives in Georgia.

Further, if the judge rules Tennessee law should prevail, Herrington argued time limit exemptions apply and negligent acts alleged to have occurred through May 2012 extend the window, allowing the suit to proceed.

The case is, if not the first, one of the first in Middle Georgia to seek damages against the federal government amid national concerns about veterans’ access to medical care.

McKinley alleges the VA falsified medical appointments and wait times while also failing to timely diagnose and treat her husband’s medical condition.

Hall also argued McKinley’s lawyers didn’t file a “certificate of good faith,” a physician’s statement Tennessee requires speaking to the merit of a malpractice claim. Failure to file the certificate is another grounds for dismissal, she argued.

Herrington said a doctor’s affidavit was filed as required by Georgia law and to require a plaintiff to meet requirements for both Georgia and Tennessee laws in filing is an “absurd burden.”

Information from Telegraph archives was used in this report. To contact writer Amy Leigh Womack, call 744-4398 or find her on Twitter@awomackmacon.

This story was originally published August 25, 2015 at 12:44 PM with the headline "Macon woman’s wrongful death suit against VA hinges on federal judge’s decision ."