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Veteran who contracted Legionnaire's disease waited too long to sue the VA, U.S. court rules

Patriot-News - 7/13/2018

July 13--An Air Force veteran who claims he contracted Legionnaire's disease at a U.S.Veterans Affairs hospital in Pittsburgh waited too long to sue the government, an appeals court has ruled.

That decision by a panel of the U.S. Court of Appeals for the 3rd Circuit short-circuits the suit Dewayne Rettig filed against the federal government in 2016, six years after he insists he contracted the disease at the Pittsburgh Veterans Affairs University Drive Hospital.

That hospital was indeed the nexus of a Legionnaire's outbreak in 2011 and 2012 that killed six veterans and sickened another 16 who survived.

Rettig, 58, of Pittsburgh, appealed to the circuit court after U.S. Western District Judge Joy F. Conti dismissed his suit on statute of limitations grounds.

According to the circuit court opinion by Judge Julio M. Fuentes, Rettig contended he contracted the disease during a routine visit to the hospital in August 2010. He was diagnosed with Legionnaires after coughing up blood and posting a temperature of 104 degrees, his suit stated.

Hospital officials told him he had likely contracted the disease during a recent trip to Mexico, Rettig claimed. He insisted in his suit that VA officials knew of the Legionnaire's problem at the hospital and were trying to cover it up.

Even though the 2011-12 Legionnaire's outbreak at the hospital was well and widely publicized, especially by the Pittsburgh Post-Gazette, Rettig waited four years to file his suit.

That delay was two years longer than the law allows, Fuentes found. He noted that federal law requires a person to file such a case within two years of recognizing they might have been wronged.

Media coverage of the outbreak, plus urgings from Rettig's own family members, should have prompted Rettig to file his complaint long before he did, Fuentes concluded. He found that, under the circumstances, Rettig's deadline for filing suit expired in June 2013, two years after the outbreak became known publicly.

"There is no dispute that in 2011 and 2012 Rettig was aware of the news stories covering the outbreak of Legionnaire's disease at the hospital," Fuentes wrote. "A reasonable person in Rettig's shoes would have been put on notice that he should investigate whether his illness also originated at the hospital."

He also rejected Rettig's claim of a cover-up. "The record does not indicate that anyone at the hospital was aware of the outbreak at the time of Rettig's initial diagnosis," the judge concluded.

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