WEST VIRGINIA RECORD

HUNTINGTON – A federal judge has dismissed the claims of a man who was given an implant that was too big during surgery to repair a broken arm.

Keith Francis sued the United States on Oct. 30, claiming the Veterans Affairs Medical Center in Huntington was to blame for the pain he has experienced in his arm since the surgery. However, U.S. Magistrate Judge Cheryl Eifert recommended in February that the complaint be dismissed.

U.S. District Judge Robert C. Chambers, of the Southern District of West Virginia, adopted Eifert’s findings on April 3 after receiving no argument from Francis, who was representing himself.

Eifert wrote that Francis missed the statute of limitations. The surgery took place in 2006, but the lawsuit wasn’t filed until 2013.

“A medical negligence claim under the Federal Torts Claims Act accrues ‘even if the claimant does not know the precise medical reason for the injury, provided that he knows or should know that some aspect of the medical treatment caused the injury,’” Eifert wrote, citing a 2008 decision by the U.S. Court of Appeals for the Fourth Circuit.

“Accordingly, the Government’s position that Francis knew or should have known of his claim as early as 2006 is not unreasonable.

“On the other hand, the record also indicates that Dr. Bolano reassured Francis that the surgery went as expected, which arguably misled him into believing that the results were standard and customary.

“Nonetheless, even giving Francis every benefit of the doubt, he certainly knew or should have known of the alleged malpractice and the resulting injuries to his arm and shoulder no later than April 18, 2011, when Dr. Fidler told him that the prosthesis was too large and could not be removed due to extensive cementing.”

The VA had denied Francis’ original claim form because Bolano is not a government employee and the surgery was not conducted at a government facility.

According to Eifert’s findings, Francis was referred to the VA Medical Center in Huntington after breaking his left humerus on a camping trip. Because the surgeon at the VAMC was not a specialist in treating that condition, he was referred to a local surgeon.

The surgery occurred Aug. 22, 2006. Francis said he experienced severe, unrelenting pain from the left elbow to the left shoulder in the years that followed.

He submitted his claim to the U.S. Department of Veterans Affairs in 2010. He filed another claim in 2013 after visiting a VA doctor who told him that the humeral prosthesis that was implanted during the surgery had an oversized head.

The VA denied his claim in October, leading to the lawsuit. Eifert ruled that he should have filed his lawsuit by April 2013.

Francis also failed to provide the 30-day notice of intent to file a lawsuit required by West Virginia’s Medical Professional Liability Act, Eifert ruled.