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Court Denies Federal Tort Claims Act Case Because Of Late Filing

by Whitcomb, Selinsky, PC Staff / January 13, 2020

It is more difficult to sue a federal government entity for damages than a private citizen or corporation. David Spinazzola attempted this difficult task of suing the government for failing to inform him and treat him for a pancreatic tumor. The United States District Court heard David Spinazzola’s case where he argued the Department of Veterans Affairs (VA) acted negligently. The U.S. District Court granted the government’s motion to dismiss.


Nature of the Claim

David Spinazzola, a veteran of the United States Air Force, sought treatment for abdominal pain at the Ernest Childers Department VA Clinic. He received a physical exam and ultrasound, but his physicians found nothing wrong. Mr. Spinazzola visited Childers VA Clinic seven months later after he continued to have abdominal pain. A computerized tomography (CT) scan, ordered by a physician’s assistant, finally uncovered the source of Mr. Spinazzola's pain. A radiologist at the VA reviewed the CT scan and diagnosed a tumor growing in his pancreas. The radiologist ordered immediate follow up and treatment. However, the physician’s assistant did not report the results of the CT scan, nor did she make a follow-up on a course of treatment. Mr. Spinazzola’s symptoms worsened while he was unaware of the results of the CT scan. The tumor continued to develop in his abdomen, causing pain, nausea, and weight loss.

Not until a year later did Mr. Spinazzola finally learned he had a tumor when a pulmonologist performed a chest x-ray in May 2017. In June 2017, the VA finally admitted they “failed to notify Mr. Spinazzola" of the tumor on his pancreas after the September 2016 CT scan. Mr. Spinazzola had the tumor surgically removed, but alleged he “suffered pain and suffering, mental anguish and emotional distress, loss earnings and wages “as a result of the V.A.’s delay in treating the tumor. Mr. Spinazzola filed a lawsuit in March, 2019 for medical negligence, negligent hiring, and negligent supervision.

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Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) allows lawsuits against federal entities and employees who cause injury while acting within the scope of employment. The doctrine of sovereign immunity prevents people from suing a government entity, unless they have express permission. The FTCA is “a limited waiver of sovereign immunity,” that makes the Federal Government liable as a private party for torts of federal employees. Section 2401(b) of the FTCA requires tort claims against the United States be presented to the appropriate federal agency within two years of the claim’s accrual, or within six months after the notice of denial.

There are exceptions to FTCA that claimants must be aware of when filing a claim against the federal government. Independent contractors employed by the federal government cannot be sued under the FTCA, unless they are treated like employees. Negligent conduct that occurs outside the scope of employment is not covered either.

Federal Tort Claims Act Procedure

Administrative claims must first be filed with the federal agency that allegedly conducted the misconduct. Claims should include detailed facts and damages. They need to be filed within two years from the time the claim arose. The agency has six months to respond to administrative claims. If the federal agency agrees with the claim, it will pay some or all the damages. If it is rejected and refuses to pay the damages, you will have six months from the date the agency mailed the decision to file a lawsuit against the agency.


Personal injury claims against the federal government caused by negligent acts or omissions of a government employee first need to present their claim to the Federal agency and be denied by the agency in writing. This step in the FTCA was fulfilled when the VA informed Mr. Spinazzola his claim was denied. Mr. Spinazzola filed a second Claim for Damage, Injury, or Death (SF-95) in December, 2018. He alleged the VA “breached its duty of care to hire, supervise, and train its medical providers” which led to his damages. He received a letter January 3, 2019 indicating his claim for damages was an untimely request for reconsideration. The federal government stated that he was required to file his lawsuit within six months of the denial, or by November 1, 2018. However, because the complaint was filed on March 29, 2019, his suit is time-barred.

Mr. Spinazzola argued the FTCA required complaints be filed either within six months of the administrative denial or within two years of the claim’s accrual. He filed his complaint within two years of being notified of the VA’S mistake. The United States District Court however noted that claimants are required to comply with both requirements to satisfy the conditions to sue the U.S. government.

Mr. Spinazzola argued that any deadline triggered by the first SF-95 did not extend to his negligent hiring and supervision claims because he did not allege enough facts to put the VA on notice to investigate the claims he made. He stated the claims he made were 180 days from when he received the second VA latter. The federal government responded to his argument, stating he couldn’t “restart the clock” by filing a second claim that is equivalent to the first.

The Court cited Roman-Cancel v. United States, 613 F.3d 37, 42 (1st Cir. 2010) to indicate plaintiffs cannot avoid timing limitations of the FTCA by submitting a new claim. When a party files duplicative claims, the court considers the second claim as an attempt to re-file the original claim or to have the agency reconsider its disposition of the original claim. The Court agreed with the federal government that the claim for medical negligence was untimely.


The U.S. government’s motion to dismiss was granted. Mr. Spinazzola claims for relief were dismissed due to lack of subject matter jurisdiction. Suing a government entity or official can be challenging. If you have been injured by a federal employee or entity, call Whitcomb Selinsky PC at (866) 476-4558.

Tags: Veterans Disability

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