Veteran's colonoscopy suit runs into trouble in court

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Veteran's colonoscopy suit runs into trouble in court

May. 12, 2011

Veterans suing the federal government after receiving colonoscopies with

potentially contaminated equipment have been dealt a setback in federal court.

Todd J. , chief judge of the U.S. District Court in Nashville, dismissed

one of the veterans’ cases in an order Friday. The judge said the lawsuit failed

to meet the requirements for the filing of a medical malpractice lawsuit in

Tennessee.

Mistakes with rigging or cleaning endoscopic equipment at Department of Veterans

Affairs hospitals in Murfreesboro, Miami and Augusta, Ga., between 2003 and 2008

created the possibility that waste and bodily fluids from patients were

transferred to subsequent patients receiving colonoscopies. Thousands of

potentially exposed patients were informed of the mistakes in 2009.

Setting a precedent?

After administrative claims for compensation were denied, more than half a dozen

of the Middle Tennessee patients sued in federal court. While the other cases

are still open, ’s decision does not bode well for them. The specific

facts of each case vary, but they make similar arguments — so similar that the

cases were transferred away from the various judges they had been assigned to

and grouped together in ’s court for efficiency’s sake.

The case dismissed Friday was a $3 million suit filed by Mayo.

Mayo claimed he contracted hepatitis from one of the colonoscopies that has led

to chronic liver disease. Mayo said the situation has emotionally devastated him

and his marriage has suffered greatly because he and his wife can no longer

experience affection and intimacy.

ruled that Mayo’s claims fall within the scope of the Tennessee Medical

Malpractice Act, which requires litigants to submit expert proof of their

allegations. Mayo had argued in court filings that an expert opinion isn’t

required to determine that the VA’s mistakes led to his infection.

Assistant U.S. Attorney Roden said that while there are nuances to each

of the veterans’ cases, the government believes each of them must satisfy the

requirement for expert testimony.

“They’re going to have to have an expert,” he said. “They seem to think they

don’t have to prove it.”

No doubts for one

Mike Sheppard, a Brentwood attorney who is representing Mayo and most of the

other veterans, would not comment while the other cases are pending.

Another veteran, Renegar of Smyrna, said there is no doubt in his mind he

contracted hepatitis from a colonoscopy at the VA hospital in Murfreesboro. He

said he has never used drugs, been unfaithful to his wife, received a blood

transfusion or engaged in any other risky behavior.

“I don’t know where else I would have got it,” Renegar said.

Renegar said his infection causes fatigue and sickness and that he had to retire

from his job as a maintenance worker for Murfreesboro City Schools.

“I just couldn’t handle a day’s work,” he said.

Contact Gee at 615-726-5982 or bgee@....