A lawsuit alleging mistreatment of veterans’ ankle and foot problems at the Veterans Affairs hospital in Togus can go forward, a federal judge ruled Friday.
The ruling by U.S. District Judge Jon Levy will allow lawsuits for five of the six vets to move ahead after he had dismissed the cases two years ago, ruling that a statute of limitations had expired before the lawsuits had been filed.
The vets claimed that the poor treatment they were given by a podiatrist at Togus left them with severe pain that limited their ability to walk. In one case, other VA doctors amputated one veteran’s leg, concluding that was the only way to relieve her pain after two surgeries were unsuccessful.
The VA eventually reviewed the cases handled by the podiatrist and called in dozens of veterans to tell them that their ailments had been handled badly and discuss how to move forward.
The six veterans filed their lawsuits against the VA shortly after that disclosure, but in the previous ruling, Levy said they had failed to file them within three years of the treatment that caused their problems. However, in that ruling, he allowed the veterans to pursue an argument that the mistreatment had been “fraudulently concealed” from them.
He held oral arguments on the concealment issue in October.
In his ruling Friday, Levy essentially found that the issue of fraudulent concealment and the basic complaints in the cases are “inextricably intertwined” so could not be decided separately, and that the six-year statute of limitations in cases of fraudulent concealment applied. All of the lawsuits were filed within a year or two of the meetings with VA officials in which the veterans learned of the alleged mistreatment.
“It’s very good news. I’m ecstatic to hear it,” said April Wood, the veteran whose leg was amputated after the failed surgeries.
Wood, who has moved from Maine to Missouri, shattered her ankle during a fall while in basic training in 2004. After the first surgery, in which a metal plate and eight screws were inserted in her ankle, the podiatrist, Dr. Thomas Franchini, told her she had “mushy bones.” He operated a second time, inserting more screws. Other VA doctors later removed Frachini’s hardware and inserted a piece of bone from a cadaver and more screws. Finally, in 2012, doctors determined the only way Wood would get relief from the pain was an amputation and, a year later, VA officials at Togus called her in to tell her that her care had been substandard.
The other vets had similar tales, although none of the others involved amputations.
One of the lawsuits, by Andy Korsiak of Troy, was essentially dismissed by Levy on Friday because Korsiak wasn’t treated by Franchini following his surgery in 2007.
Korsiak’s attorney, Celine Boyle, said she would review her options to see if there was some way to revive that case. Boyle also represents two other veterans whose suits will now go forward.
Franchini has sued the Portland Press Herald, three other publications and four reporters, alleging stories on the lawsuits and allegations against him and the VA libeled him.
Andrew Lizotte, the lead U.S. attorney defending the federal government in the case, declined to comment.
In a separate order issued Friday, a trial start date of May 8 was set, although that could be changed as the cases move forward.
David Lipman, Wood’s attorney, said he was happy with the ruling.
“It’s a good step forward because we can go to trial on the case and it’s a very complex case,” he said.
Boyle, too, said she was happy with the ruling, although disappointed that one of her clients might not get a day in court.
“I’m happy to be walking this road with these veterans,” she said.
Edward D. Murphy can be contacted at 791-6465 or at:
emurphy@pressherald.com
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