Watch Your Step!: How to Avoid the Statute of Limitations Trap When Your Private Doctor is a De Jure Federal Employee
By Jeremy D’Amico and Michael A. D’Amico
D’Amico & Pettinicchi, LLC
November 14, 2016
Plaintiffs can be caught off-guard by discovering that a physician of a private health center is considered a federal employee because the health center receives federal grants. If this discovery occurs beyond the Federal Tort Claim Act statute of limitations, the claim is time-barred. This article explains the statutory framework and case law that creates this trap and provides advice on how to avoid it.
What creates the “trap”? 1
Under Connecticut law, generally speaking, a plaintiff must file a medical malpractice claim (1) two years from the date the injury is “sustained or discovered” or (2) two years from the date the injury should have been discovered “in the exercise of reasonable care.”2 In addition, a plaintiff can file a request with the clerk of the superior court for an automatic ninety-day extension.3 Connecticut’s statute of limitations contains a statute of repose that requires medical malpractice claims to be brought within three years, or five years in a wrongful death claim, from the date of the “act or omission,” regardless of when the injury could have or should have been discovered.4 Section 52-584 and Section 52-555(a) apply when a medical malpractice or wrongful death claim is filed against a non-federal employee health care provider. But this is not the case when a claim accrues against a physician of some health centers.
Since 1946, the Federal Tort Claims Act waives sovereign immunity for negligent acts of government employees acting within the scope of employment who cause “personal injury or death.”5 The Federal Tort Claims Act waives sovereign immunity for the negligent acts of government employees acting within the scope of employment who cause “personal injury or death.”6 Under federal law, the claims “shall be forever barred” unless the plaintiff presents the claim to the appropriate federal agency “within two years after such claim accrues” or files suit “within six months” of the agency’s denial.7
In the federal context, the term “accrues” has been interpreted by the United States Supreme Court and subsequently by the Second Circuit Court of Appeals to include a “diligence-discovery rule of accrual.”8 In the Second Circuit, a claim accrues when a plaintiff is “told or has reason to suspect” that her injury suffered is “related in some way to the medical treatment” she received.9 Thus, the accrual date is triggered by the plaintiff’s acquisition of “sufficient information suggesting that an iatrogenic [doctor-related] injury may have occurred that she knows, or should know, enough ‘to protect [her]self by seeking legal advice.’”10
Comparing the two statutes of limitations illuminates key differences. First, there is no ninety-day extension applicable to the federal statute. Second, there is no three year statute of repose either. Rather, the federal statute is a firm two year window accruing from the time the plaintiff “knows enough to suspect that the injury was caused by his treatment even if he or she has no reason to suspect that the treatment was negligent.”11 Third, the plaintiff is required to exhaust administrative remedies before her claim will be fully heard in federal court.
How does the FTCA apply to my Medical Malpractice claim?
Unless a plaintiff knows whether or not the private doctor allegedly committing medical malpractice is a federal employee for purposes of the FTCA statute of limitations, and complies with the FTCA claims procedure, the uninformed plaintiff is subject to dismissal of her suit. The difference can be fatal to a plaintiff’s cause of action.
In 1992, and subsequently amended in 1995, Congress passed the Federally Supported Health Centers Assistance Act (FSHCAA) to “relieve health centers of the burdensome costs of private malpractice insurance by extending FTCA coverage to health center employees.”12 The FSHCAA allows the Secretary to “make grants to public and nonprofit private entities for projects to plan and develop health centers which will serve medically underserved populations.”13 Over the years, Congress expanded the coverage of the Federal Tort Claims Act (FTCA) to include health centers that service (1) residents of public housing, (2) migratory and seasonal agricultural workers, (3) homeless populations, (4) high infant mortality populations, and (5) limited English speaking communities.14 Under 42 U.S.C. section 233(g)(1)(A), an “entity described in paragraph [§ 233(g)](4), and any officer, governing board member, or employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner . . . shall be deemed to be an employee of the Public Health Service . . . .”15 Section 233(g)(4) includes health centers receiving Federal grants as approved by the Secretary.16 Awarding federal grants to these health centers turns them into federal employees for purposes of the FTCA, and subjects them to the limitation period of the FTCA.17
This does not mean that every health care provider is a Federal employee for purposes of the FTCA. In fact in 2015 there were only 1,375 Program Grantees nationwide.18 In 2015, Connecticut had sixteen health centers covered by the FTCA.19 These sixteen health centers, and their physicians, their contracted physicians, and their other licensed health care providers are considered federal employees for purposes of the FTCA. This means that the two year statute of limitations under the FTCA—rather than Connecticut’s three-year statute of repose and the statute allowing for an automatic ninety-day extension—applies to these health centers.
How to avoid the “trap”?
Plaintiffs across the country have fallen into the trap of filing a claim in state court only to find out that (1) they are in the wrong venue and (2) the claim is time-barred.20 The Second Circuit Court of Appeals recently found it “troubling that the government has not publicized resources for determining whether a given healthcare center is a deemed federal employee.”21 Regardless of its lack of publicity, the United States Court of Appeals for the Seventh Circuit recently stated that “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.”22
Here are a few ways to avoid the statute of limitations trap.
- Check available resources to determine deemed status!
The Department of Health and Human Resources has an agency called the Health Resources and Services Administration (HRSA).23 The HRSA created the Bureau of Primary Health Care (BPHC) to oversee health care provided to underserved communities.24 The BPHC governs the health centers receiving funds under the FSHCAA. The BPHC website provides the names of each federally supported health center by state.25 By visiting this website, a plaintiff can learn whether a health care provider is deemed a federal employee invoking the FTCA; and, because the BPHC keeps records for a number of years, whether the health center was considered a federal entity at the time of the alleged malpractice.
In addition to searching BPHC’s database, plaintiffs should perform a caselaw search to see if any court has considered the subject health care provider a federal employee.26 Attorneys specializing in medical malpractice may also be a resource. Finally, a plaintiff should also contact the particular health care provider and inquire into its deemed-status. Utilizing these sources should provide counsel with appropriate information to determine whether further inquiry into the deemed-status of the health care provider is needed, and what statute of limitations will govern the potential claim.
- The FTCA requires me to exhaust my administrative remedies before filing suit, What if I already filed my medical malpractice claim in State Court?
Realizing that plaintiffs may erroneously file suit in state court without being aware that the defendant is a federal employee subject to FTCA requirements, Congress enacted the Federal Employees Liability Reform & Tort Compensation Act (“the Westfall Act”).27 Under the Westfall Act, an action dismissed for failure to first exhaust administrative remedies, will be considered timely for purposes of the statute of limitations if (1) “the claim would have been timely filed had it been filed on the date the underlying civil action was commenced, and (2) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.”28
Let’s compare two examples to illustrate the trap.
Example 1: A plaintiff’s claim accrued on January 2, 2015. The plaintiff files a claim against a health center in state court on January 1, 2017, one day before the federal statute of limitations expired. Subsequently, the case is removed to federal court because the Attorney General certifies that the health center through its employed physician was acting as a Federal employee. The case is removed to the corresponding district court, and then dismissed on March 1, 2017 because the plaintiff failed to exhaust her administrative remedies before filing suit. At the time of dismissal the statute of limitations has run. The Westfall Act prevents the plaintiff from losing her claim in this scenario.
The Westfall Act allows the plaintiff to use the state court filing date of January 1, 2017, which is timely under the FTCA even though the plaintiff did not initially exhaust the administrative remedies. As a result, the Westfall act will protect that filing date as timely so long as the plaintiff files her claim with the appropriate federal agency within 60 days of the dismissal. If this claim is subsequently denied by the agency, 29 the plaintiff can institute an action in federal court within 6 months of this denial.
Example 2: The Westfall Act, however, will not protect a plaintiff who files a state court action relying on the ninety-day extension allowable under Connecticut law. Again, consider a plaintiff’s claim that accrues on January 2, 2015. Again, the plaintiff files a claim in state court against a health center and its employed physician. But in this case, the plaintiff filed the claim on February 2, 2017, after having filed a Petition to Toll the limitation period per CGS 52-190a(b). This date is beyond the two year statute of limitations, but within Connecticut’s ninety-day extension period. The Attorney General again certifies that the health center and its employed physician acted as a Federal employee. The case is removed to the district court, and then dismissed on March 1, 2017 because the plaintiff failed to exhaust her administrative remedies before filing her claim. Here, at the time of dismissal the two year statute of limitations has run. Unfortunately for the plaintiff, federal law does not have an automatic ninety-day extension period, and thus at the time of filing her claim in state court, the federal two year statute of limitations had also run. In this case, the Westfall Act will not revive the plaintiff’s claim because the underlying action was a federal tort claim, and the plaintiff filed the action one month after the two year period expired. Therefore, Plaintiff’s claim is not timely for purposes of the Westfall Act, and the plaintiff cannot refile her claim.
- Can I rely on the doctrine of equitable tolling if I did not know the health center was a federal employee and I filed a medical malpractice claim in state court after the FTCA two-year statute of limitations period expired?
This is the scenario laid out by example 2 above. Many circuit courts of appeals have considered the applicability of equitable tolling when the plaintiff did not know that the health center was a federal employee and thus did not know that the two-year statute of limitations applied.30 As a threshold matter, the United States Supreme Court reiterated in 2015 that the time limits in the FTCA are not jurisdictional.31 “The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.”32 Equitable tolling requires the plaintiff to establish two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”33 Plaintiffs arguing for equitable tolling who failed to identify the health care provider as a federal employee have little success in the circuit courts of appeals.34 Some of these courts have suggested that an attorney’s failure to investigate the status of the health care provider as a federal employee may be subject to a legal malpractice claim.35
The bottom line is that courts expect that plaintiffs bringing medical malpractice claims take reasonable efforts to discern whether the health care provider is a federal employee. As one court of appeals stated, “Equitable tolling cannot be premised on the incompetence of the plaintiff’s lawyer.”36 When reviewing a medical malpractice claim, every attorney should determine the deemed-status of the health care provider. Perform a search of the BPHC database, consult caselaw and inquire of the deemed-status of the health care provider.
Taking these steps early will aid your client in obtaining a just result, and help you avoid the trap.
1 See Valdez v. United States, 518 F.3d 173, 183 (2d Cir. 2008) (“[B]y not formulating a regulation that would require notice to a patient that the doctor rendering service to him is an employee of the United States, the Department of Health & Human Services has created a potential statute of limitations trap in states . . . [that] provide a longer period of time than the FTCA to file a complaint. The number of cases in which the United States has sought to take advantage of this trap suggests that it is aware of the consequences of its failure to disclose the material facts of federal employment by doctors who might reasonably be viewed as private practitioners.”).
2 CONN. GEN. STAT. § 52-584 (2016). For the Supreme Court’s interpretation of § 52-584 see Lagassey v. State, 268 Conn. 723 (2004):
The limitation period for actions in negligence begins to run on the date with the injury is first discovered or in the exercise of reasonable care should have been discovered. In this regard, the term “injury” is synonymous with “legal injury” or “actionable harm.” “Actionable harm” occurs when the plaintiff discovers, or in the exercise of reasonable care should have discovered the essential elements of a cause of action. A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for “actionable harm.” Furthermore, “actionable harm” may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another. In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of “actionable harm.”
Id. at 748-49 (internal citations omitted).