The federal government provides direct medical care through many departments, including the VA system, the Indian Health Service, and the Public Health Service. Research is conducted at these facilities and at the NIH. This care results in many medical malpractice claims, which are subject to very particular rules of practice because of governmental immunity.
For most of our history, private individuals and corporations could not sue the federal government or its employees (for work-related claims) because traditional Anglo-American law did not allow lawsuits against the sovereign. Someone injured by the government would have to get a member of Congress to sponsor a private bill to compensate for the injuries. This caused three problems: 1.) most individuals did not have access to a Congressperson to get a bill passed; 2.) when bills were passed, they were inevitably subject to graft; and 3.) the number of bills began to clog the Congress, preventing it from doing its public business. In 1948 Congress passed the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Through the FTCA, the government has waived its sovereign immunity for a number of torts and established the procedure for pressing a claim against the government and its employees. However, § 2680 of the FTCA, expressly refuses to waive sovereign immunity for any claims arising from assault or battery. Also, claims based on an exercise of discretionary decision making are not allowed by the FTCA. (See Berkovitz v. U.S., 486 U.S. 531 (1988)). Although this is not usually at issue in ordinary medical malpractice cases, it does prevent claims based on staffing decisions and care driven by specific protocols that reflect policy choices on how to allocate resources or other discretionary matters.
The FTCA applies the tort rules of the state where the incident occurred for its substantive law for allowed claims. Before a claim is filed in federal court, the claimant must file an administrative demand against the government. The purpose of the administrative claim requirement is to allow the government an opportunity to settle the claim outside of court, and to provide the claimants with an avenue for resolving small claims that would not be cost-effective to litigate. These cases deal with the requirements for that claim.
Motley deals with the requirement that the claim must be filed within two years of the injury. (See 28 U.S.C. § 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."). Rosalyn Motley gave birth to a stillborn baby girl on February 7, 1996. On May 14, 1998, Motley and the baby's father filed a wrongful death action in the City of St. Louis Circuit Court against People's Health Center, Inc. (PHC), alleging that PHC's substandard prenatal care caused the baby's intrauterine fetal demise. Unfortunately for plaintiffs, PCH was a federally funded community health center. The statute establishing such centers put them under the federal government's sovereign immunity protection, even though they are private entities and their staffs are not direct employees of the federal government. The United States certified the claim under the Federal Tort Claims Act (FTCA), removed the case to the Eastern District of Missouri, and the district court dismissed the action for failure to exhaust administrative remedies by filing a timely claim against the agency, as the FTCA requires. (28 U.S.C. § 2675(a)). Plaintiffs filed an administrative claim with the Department of Health and Human Services, which was denied for lack of agency action on June 16, 1999. Plaintiffs then filed this FTCA wrongful death action. The district court dismissed the suit as time-barred because plaintiffs failed to file their administrative claim within the required two years.
Plaintiffs appealed, raising two distinct statute of limitations issues. First, they argued the district court erred in concluding that their FTCA cause of action accrued on February 7, 1996, the date the baby's death was discovered, because they did not then know that PHC's prenatal care had caused the intrauterine demise. Plaintiff argued their cause of action did not accrue until less than two years before May 14, 1998, when they filed their wrongful death action in state court, and that their subsequent FTCA action is timely by reason of the Westfall amendment to the FTCA. (See Pub. L. No. 100-694, 102 Stat. 4563 (1988), codified at 28 U.S.C. § 2679(d)(5)). Alternatively, plaintiffs argued that the two-year FTCA statute of limitations should be equitably tolled because their state court action was timely filed under the applicable Missouri statute of limitations, and they were unaware that PHC and its medical staff are federal employees for FTCA purposes.
Whether a claim accrues under the FTCA is a question of federal law. (See Brazzell v. United States, 788 F.2d 1353, 1355 (8th Cir. 1986)). The general rule is that an FTCA claim accrues at the time of injury. But in medical malpractice cases, the claim accrues when the "plaintiff actually knew, or in the exercise of reasonable diligence should have known, the cause and existence of his injury." (Wehrman v. United States, 830 F.2d 1480, 1483 (8th Cir. 1987)). Knowing the cause and existence of an injury is not the same as knowing that a legal right has been violated. Once a plaintiff knows or should know that he has been injured and who has inflicted the injury the clock starts to run. (United States v. Kubrick, 444 U.S. 111, 122 (1979)("[t]here are others who can tell him if he has been wronged, and he need only ask"). In this case, the injury was obvious - the death of the baby. The plaintiffs argue that the reason for the death was not know until much later. However, the facts indicate that plaintiffs were informed that the baby appeared to be post-dates (42+ weeks) and that they immediately began inquiring whether PHC should have done anything to hasten the delivery. At this point, plaintiffs knew there was an injury and possible negligence, which triggered a duty to use due diligence to find out what had happened. Based on this, the court concluded that the plaintiffs' cause of action accrued on February 7, 1996.
The court next turned to the plaintiffs’ claim that they could not have known about the funding of PHC and its coverage by the FTCA. The court held that it was proper to the apply the doctrine of equitable tolling to FTCA claims against the government, (See Nicolai v. U.S. Bureau of Prisons, Dir., 4 F.3d 691, 693 (8th Cir. 1993)), but only in exceptional circumstances: "The party who is claiming the benefit of an exception to the operation of a statute of limitations bears the burden of showing that he is entitled to it." (Wollman v. Gross, 637 F.2d 544, 549 (8th Cir. 1980), cert. denied, 454 U.S. 893 (1981).)
In this case, plaintiffs argue that Motley was "lulled into a false sense of security" because PHC is a private not-for-profit corporation registered with the State of Missouri, and she was never informed of its FTCA coverage. But plaintiffs were not affirmatively misled by PHC or the government - they simply made no inquiry into PHC's status while Motley was receiving prenatal care, or during the two-year period after February 7, 1996, when an administrative FTCA claim could have been timely filed. To toll the statute because of a plaintiff's ignorance of the defendant's federal employee status, plaintiff "must at the very least show that the information could not have been found by a timely diligent inquiry." (Gonzalez v. United States, 284 F.3d 281, 291 (1st Cir. 2002)). Since plaintiffs had ample time after learning of the baby's death to find the Federally Supported Health Centers Assistance Act of 1992 and to inquire into its possible application to their claim, their failure to do so was a mistake of law that does not entitle them to equitable tolling.
The second case, Goodman v. U.S, deals with whether the administrative claim must state the exact claim that is later brought in court, or whether it must only put the government on sufficient notice that a reasonable person could anticipate the claims in the subsequent litigation. JoAnn Goodman, who was diagnosed with incurable melanoma cancer, participated in a clinical research study at the National Institutes of Health ("NIH") and died from a toxic reaction to one of the medicines used in the study. Her husband filed an unsuccessful administrative complaint for the wrongful death of his wife. Thereafter, he filed a federal complaint under the FTCA alleging medical malpractice. The complaint was amended two times to correct deficiencies and to allege that the NIH failed to obtain JoAnn Goodman's informed consent. While the government prevailed at trial, it preserved its objection that plaintiff had not satisfied the notice requirement, which meant that he had not exhausted his administrative remedies so the court had no jurisdiction.
The appellate court began by first noting that, the
prerequisite administrative claim need not be extensive. The person injured, or his or her personal representative, need only file a brief notice or statement with the relevant federal agency containing a general description of the time, place, cause and general nature of the injury and the amount of compensation demanded.
(Warren v. United States Dep't. of Interior Bureau of Land Mgmt., 724 F.2d 776, 779 (9th Cir. 1984)). In this case, the issue was whether a general claim of negligence should also constitute notice of failure to obtain informed consent. Plaintiff's claim stated that "things . . . were overlooked in the procedure" and that his wife "should not have died." On its own, this statement is very ambiguous as regards informed consent. This ambiguity is resolved by the agency's answer, which makes it clear that it did consider informed consent issues:
Mrs. Goodman was well informed of this risk when she gave her consent to undergo the experimental treatment. Her death was the result of a disclosed complication of the treatment rather than any act or omission of NIH physicians.
The court found that this was evidence of sufficient notice to overcome the jurisdictional claims.
These cases reiterate the importance of following the FTCA and making sure you know whether it applies in a given case. While many lawyers would have missed its application in the Motley case, this oversight could have been cured in time had the lawsuit been filed early enough to allow filing the claim once the government protested the failure to comply with the FTCA. In cases which must be filed close to the 2 year filing date, the attorney must be very careful to assure that the FTCA does not apply. These cases, and the cites they contain, are a good starting point for research on filing medical negligence claims against federal government physicians.
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