Trap for the Unwary Works Again: Federal Healthcare and the Limitations Provision of the Federal Tort Claims Act

By Alex Stein

The same story involving a federally qualified health center (FQHC) repeats itself again, again, and now again: see Phillips v. Generations Family Health Center, — Fed.Appx. —- (2016), 2016 WL 5340278 (2d Cir. 2016).

A patient from Connecticut receives medical treatment from a physician who works at a Connecticut-based facility known as Generations Family Health Center. This center is an FQHC and the physician is consequently deemed a federal employee pursuant to 42 U.S.C. § 233(g)-(n) (as explained, inter alia, in Phillips v. Generations Family Health Center, 723 F.3d 144, 145 (2d Cir. 2013)). The patient is unaware of this fact even though she could easily find it on the center’s website and in this database that belongs to the Department of Health and Human Services (DHHS). Subsequently, when the patient suspects that her physician committed malpractice, she and her attorney sue him in a Connecticut court because they believe him to be just a regular doctor from Connecticut. Alas, they could only sue the physician according to the Federal Tort Claims Act (FTCA) after going through a mandatory administrative claim process at DHHS. 28 U.S. Code §§ 1346 (b)(1), 2675. When they realize it, the suit becomes time-barred pursuant to the FTCA, 28 U.S. Code § 2401 (b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”).

The patient moves her suit to a federal court and petitions for equitable tolling, now unquestionably available as per United States v. Wong, 35 S.Ct. 1625 (2015). The court, however, has no choice but deny this petition because the attorney who went to a state court in Connecticut on the patient’s behalf, instead of suing the physician in a federal court, did not act with due diligence. As federal courts have held on several occasions, such omissions preclude equitable tolling. See Sanchez v. United States, 740 F.3d 47 (1st Cir. 2014), and Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013).

Under these dire circumstances, which I described as a “trap for the unwary,” the patient’s only recourse is to sue her attorney for malpractice, as suggested in Arteaga at 834-35 (“It’s not asking too much of the medical malpractice bar to be aware of the existence of federally funded health centers that can be sued for malpractice only under the Federal Tort Claims Act … and if a member of that bar is not aware and misleads a client …, the lawyer may be liable for legal malpractice but the government can still invoke the statute of limitations.”).

In the case at bar, the Second Circuit confirmed this conclusion while clarifying (just in case…) that “We take no position as to whether such a suit would be successful here.”

It’s about time that attorneys representing plaintiffs in medical malpractice suits check on their defendants.

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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.

One thought on “Trap for the Unwary Works Again: Federal Healthcare and the Limitations Provision of the Federal Tort Claims Act

  1. There was a fault during a cesarean section process that caused hemorrhage. Therefore, this was from malpractice. The loss of nutrients, oxygen, carbon dioxide, hormones, and blood cells in body are the cause of death according to the cardiovascular system. However, a surgeon acquired a practical experience on malpractice which was to be solved according to 28 U.S.C. but the claimant came for suing the government employee after 2 years for malpractice. The action should have taken place within six months. The surgeon is a government employee according 42 U.S.C., but the government is not sued for malpractice; the surgeon with malpractice should be sued according to the Bill of Rights if the complainant opened the case in one month to six months.
    Malpractice is not allowed according to the Bill of Health in surgery and the biomedicines are manufactured with pharmacodynamics and pharmakinetics for dosimetry.

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