Battieste v. United States

── Battieste v. United States ── Court: Court of Appeals for the Fifth Circuit Date: April 22, 2026 Category: United States Civil Case: 25-60111 Document: 65-1 Page: 1 Date Filed: 04/22/2026 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED April 22, 2026 No. 25-60111 Lyle W. Cayce ____________ Clerk Velma Battieste, as Administratrix of the Estate of Gene Cleveland Battieste, Deceased, Plaintiff—Appellant, versus United States of America, Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:24-CV-304 ______________________________ ON PETITION FOR REHEARING Before Clement, Graves, and Ho, Circuit Judges. James E. Graves, Jr., Circuit Judge: The petition for panel rehearing is DENIED. The opinion issued February 27, 2026, is withdrawn by the panel and the following is substituted in its place. Case: 25-60111 Document: 65-1 Page: 2 Date Filed: 04/22/2026 No. 25-60111 In 2006, Gene Battieste underwent an unauthorized surgery at a Veterans Affairs hospital that resulted in post-operative complications. Eighteen years later, his estate sued for medical negligence. Mississippi’s medical malpractice statute bars a claim brought “more than seven (7) years after the alleged act, omission or neglect occurred.” Miss. Code Ann. § 15-1-36(2). Because we conclude that § 15-1-36(2)’s seven-year provision is a statute of repose which presents an absolute time-bar to this claim, we AFFIRM the district court’s dismissal of the suit. I. BACKGROUND Gene Cleveland Battieste was a veteran who underwent surgery at the Veterans Affairs (“VA”) Medical Center in Jackson, Mississippi on September 7, 2006. 1 Mr. Battieste consented to surgery on his C3–C7 vertebrae. However, the VA also operated on his C2 vertebra without his knowledge or consent. Mr. Battieste reported itchiness and a rash at the site of the incision in a post-operative visit. Subsequently, Mr. Battieste reported an elevated temperature and malaise, and he developed a moderate MRSA (staph) infection and an elevated white blood cell count. In 2008, Mr. Battieste applied for VA disability benefits, which were approved in 2020 by the VA Board of Veterans’ Appeals (“BVA”). That BVA decision recounts Mr. Battieste’s relevant medical history. It details a 2016 opinion by a VA examiner who diagnosed Mr. Battieste with post- operative degenerative arthritis, wound infection, a C2 cervical fracture, and increased neck pain. This 2016 examination noted that the C2 vertebra operation was conducted without Mr. Battieste’s consent or knowledge. Mr. Battieste’s medical history placed him at additional risk which should have _____________________ 1 Mr. Battieste passed away in January 2022. 2 Case: 25-60111 Document: 65-1 Page: 3 Date Filed: 04/22/2026 No. 25-60111 led to additional testing, and “the VA’s failure to monitor [Mr. Battieste] closely post-operation was clearly a breach in the standard of care.” The 2020 BVA report concluded that the VA did not provide Mr. Battieste with “proper informed consent” and failed to inform Mr. Battieste or his family