Malpractice, Apologies and the Statute of Limitations in Federally Qualified Health Centers

By Alex Stein

Two months ago, the Seventh Circuit has delivered another important decision with regard to medical malpractice actions filed against federally qualified health centers. Blanche v. United States, 811 F.3d 953 (7th Cir. 2016). See also Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013), and Sanchez v. United States, 740 F.3d 47 (1st Cir. 2014), discussed here.

Such actions can only be filed in federal courts pursuant to the Federal Tort Claims Act (FTCA), but patients and – worse – their attorneys are often unaware of this fact. As a result, by the time they properly file a suit, the FTCA’s two-year limitations period expires and the patient’s cause of action against the United States becomes time barred. See 28 U.S.C. § 2401(b). I call this problem “FTCA’s Trap for the Unwary.” To salvage the suit, the patient can petition for equitable tolling, but her chances of being granted equitable tolling are slim (in courts that still interpret the FTCA’s limitations provision as jurisdictional, those chances do not even exist).

In the case at bar, the plaintiff delivered a macrosomic baby that weighed 11.7 pounds and developed Erb’s Palsy: weakness of the arm resulting from an injury to the nerves surrounding the shoulder. Shortly after delivering the baby, the plaintiff suspected that something was wrong in the prenatal care she received from her doctors at a federally qualified health center. She and her lawyers, however, wasted valuable time on filing and prosecuting a medical malpractice suit in a state court. By the time the plaintiff reached the federal court – the only court that could adjudicate her suit pursuant to FTCA – the suit was time barred.

The court denied the plaintiff’s plea for equitable tolling and the Seventh Circuit affirmed that decision.

The Circuit explained that “medical malpractice claims do not accrue when the plaintiff knows that her injury was caused by a doctor. Rather, the accrual date is when the plaintiff has enough information to suspect, or a reasonable person would suspect, that the injury “had a doctor-related cause” (the “injury notice”). The Circuit further explained that “Regardless of [the plaintiff’s] subjective beliefs, a reasonable person under the circumstances would have had enough information to inquire further into whether [her doctor] caused [her daughter’s] injury” (citing, inter alia, United States v. Kubrick, 444 U.S. 111, 123 (1979)).

The Circuit also rejected the plaintiff’s argument that “she was prevented from filing her complaint on time because the Health Center did not reveal its federal status.” The Circuit reasoned in this connection that the plaintiff presented “no evidence that the Health Center made any attempt to conceal its federal status.” Moreover, according to the Circuit, “it appears that the plaintiff’s lawyers did not adequately research into whether the Health Center was federally affiliated.” As explained in Arteaga, 711 F.3d at 834, there is a government operated website identifying all health centers that receive federal funds and thus can only be sued under the FTCA. See http://findahealthcenter.hrsa.gov/. Hence, “Members of the medical malpractice bar should know enough to consult the website when approached by a prospective client.”

As in Arteaga, this new decision suggests that the plaintiff may now be able to sue her lawyers for attorney malpractice.

As part of this decision, the Circuit properly rejected the government’s argument that the doctor’s apology about the outcome of the treatment has created an “injury notice” for purposes of the statute of limitations. This apology, held the Circuit, indicated no acknowledgment of guilt. Moreover, “a doctor expressing his sympathy for a new mother who had just endured a painful delivery that resulted in an injured child should not be construed as a confession of malpractice. This is exactly the sort of “ghoulish consequence” that our circuit has long sought to prevent.” (citing Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985), and E.Y. ex rel. Wallace v. United States, 758 F.3d 861, 867 (7th Cir. 2014) (“[T]he law should not encourage patients to assume their doctors are responsible for negative outcomes, let alone penalize patients who do not turn on their doctors at the first sign of trouble.”).

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.