Medical Malpractice Claims Against Public Health Service and Federally Funded Community Health Center Physicians: Practical Problems and Potential Pitfalls to Be Aware of
I. Introduction:
Medical malpractice practitioners beware. As we all know, not all medical malpractice claims are created equal. As you may not know, however, not all medical malpractice claims are subject to the same rules in New Hampshire and practice pitfalls abound if you do not know who your defendants are insured by and the precise timeline of your client’s case. If your client is injured by the medical negligence of a health care provider at a federally funded health center, a public health service facility, or a volunteer at a free health clinic, his or her claim is most likely not governed by New Hampshire law and is governed by the Federal Tort Claims Act,1 which has a shortened statute of limitations period, strict administrative procedural filing prerequisites and no common law discovery rule or tolling provision for minors or incompetents. If you do not pay close attention to the person funding the operations of your potential defendant, you may compromise your client’s rights, miss the applicable statute of limitations and expose yourself and your office to significant liability by doing so.
II. The Federal Tort Claims Act (FTCA):
The federal government provides direct medical care through many sources, the most well known being the U.S. Military Services and the Veterans Administration Health System. Historically, citizens could not sue the government for injuries caused by negligent medical care due to the government’s sovereign immunity. In 1948, however, Congress passed the Federal Tort Claims Act (FTCA) to remedy this problem.2 The FTCA creates a limited waiver of sovereign immunity by the United States for claims for money damages for injuries to persons or property caused by the negligent actions or omissions of a government agent or employee during the scope of their agency or employment if that conduct would give rise to liability for damages if the agent or employee was a private actor under the applicable state law.3 Because of this, the FTCA applies the substantive medical malpractice law of the state where the incident occurs, but it applies its own administrative and procedural rules as jurisdictional prerequisites to filing a claim. These administrative filing requirements are strictly construed.
To be timely filed under the FTCA, a medical malpractice claim against a federal defendant must be presented to the appropriate administrative agency within two years of when the claim accrues or it will be forever barred.4 This two-year administrative claim filing requirement is applied regardless of whether a given state provides for a statutory limitations period longer than two years for filing a medical malpractice claim. In short, this administrative filing requirement is a jurisdictional prerequisite to filing suit and it is applied to give the federal government the opportunity to resolve the claim without litigation if it is meritorious and more cost-effective to do so. If a plaintiff does not timely file an administrative claim but properly files a medical malpractice claim in state court within two years of the medical negligence claim accruing and the United States is later substituted as a defendant after removal of the case to federal court, however, the plaintiff may file its administrative claim within 60 days of dismissal of the removal action if the administrative claim would have been timely filed on the date the state court action was filed.5
Under the FTCA, the accrual date for a plaintiff’s medical malpractice claim is the key to survival of the claim. “The general rule is that a tort claim accrues at the time of the plaintiff’s injury.”6 There are no tolling provisions for the accrual date of this two-year statute of limitations period for minors or incompetents because their guardians or personal representatives are expected to assert their rights on their behalf.7 Likewise, there are very limited equitable tolling provisions that will apply to the accrual date of a medical malpractice claim under the FTCA. It is not an excuse that the plaintiff was unaware of the federal employee status of a defendant. The limited exception to this is if, and only if, a plaintiff can prove that the federal government either deliberately concealed its deemed status or affirmatively misled the plaintiff into believing it was a private actor, and the plaintiff proves that he or she had no duty to inquire as to the actual status of the potential defendant.8 If a plaintiff injured by medical negligence fails to inquire into the potential federal status of the defendant, the plaintiff is considered to have made a mistake of law that will not entitle them to equitable tolling and could subject their counsel to liability for missing the applicable limitations period.9
While there is a very limited discovery rule that may be applied to toll the accrual date FTCA claims, it too is governed by federal not state law and it is far more strict than New Hampshire’s common law discovery rule. Under the discovery rule exception for FTCA medical malpractice claims, a claim accrues when the plaintiff discovers the factual basis for the cause of action.10 This means that the claim accrues “when a plaintiff has factual knowledge of both the existence and the cause of his injury.”11 The question is whether a reasonable person similarly situated to the plaintiff would have known the necessary facts to form the basis of his or her claim.12 One of the reasons this limited discovery rule exception was created for medical malpractice cases under the FTCA is that “many of the consequences of medical malpractice often do not become apparent for a period longer than that of the statute [of limitations], [so] the plaintiff is left without a remedy.”13 This discovery rule is generally applied when an injury is not known within two years of when the malpractice occurs. It is not usually applied in cases where the causal connection could not be established or when a plaintiff does not know his or her rights have been violated by medical negligence. Indeed, once a plaintiff suffers an injury and knows where and when the injury occurred, the clock begins to run. Once the injury is known, a plaintiff is expected to make reasonable inquiry of others “who can tell him if he [or she] has been wronged.”14 Furthermore, the plaintiff is expected to make reasonable inquiry into the funding source of the potential defendant to determine whether or not the FTCA applies to his or her case.15
While certain medical malpractice claims, such as those against health care providers at VA Medical Centers, have fallen under the protection of the FTCA since its enactment, others have only become protected by federal law since the adoption of the Federally Supported Health Centers Assistance Acts of 1992 and 1995 (FSHCAA). The FSCHAA granted medical malpractice protection from liability to all health centers supported by the United States Department of Health and Human Services Health Resources and Services Administration. Under this act, these health centers and their agents, employees and volunteers are considered to be federal employees and personally immune from lawsuits arising from conduct in the course of their employment, because the federal government is their insurer. In short, this means if a health care provider is funded by the federal government, the federal government is your defendant in a medical malpractice case against that provider and you are subject to all of the administrative filing and jurisdictional requirements of the FTCA in order to bring a claim. Once granted status as a federally funded health center, the health care provider can no longer be sued in State court and your state statute of limitations no longer applies to your claim. In 2004, this act was expanded to also provide protection to all volunteer health care professionals providing services at free clinics. These volunteers are also deemed to be federal employees acting within the scope of their employment for purposes of medical malpractice claims under the FTCA. In order to fall within this act, eligible health centers are required to submit annual applications to the Bureau of Primary Health Care at the U.S. Department of Health and Human Services Health Resources and Services Administration. As such, this list of eligible providers can change annually and you should regularly check to see if a potential medical malpractice defendant is eligible to be deemed a qualified federal employee under the FTCA.
III. Federally Supported Health Centers in New Hampshire:
In New Hampshire, since enactment of the FSHCAA, there are far more health care providers supported by federal funding than you may expect. In addition to the VA Medical Centers and known public health clinics, the following providers also fall under the FSHCAA and are subject to all of the FTCA administrative and substantive requirements:
Ammonoosuc Family Health Service, Littleton
Ammonoosuc Community Health Services, Woodsville
Franconia Family Health Center, Franconia
Mt. Mooselaukee Health Center, Warren
Whitefield Family Health Center
Avis Goodwin Community Health Center, Dover and Rochester
City of Manchester Health Department
Families in Transition, Manchester
Manchester EHU/Families
New Horizons, Manchester
Coos County Family Health Services, Berlin and Gorham
Coos County Nursing Home, Berlin
St. Vincent Depaul Healthcare, Berlin
Mid State Health Center, Plymouth
Speare Medical Associates, Bristol
Families First of the Greater Seacoast, Portsmouth
Families First Health Center, Portsmouth
Health First Family Care Center, Franklin and Laconia
Indian Stream Health Center, Colebrook
Lamprey Health Center, Newmarket
Lamprey Health Care, Raymond
Nashua Area Health Center
Rockingham County Nursing Home, Brentwood
Manchester Community Health Center
This list is not necessarily exhaustive since providers can apply for federal status annually, so you need to ensure that you regularly check the federal funding status of your potential defendant immediately after you meet with your client to ensure that you protect his or her rights.
IV. Practice Pitfalls for Filing Administrative Claims
So you have a client with a potential malpractice claim that falls under the FTCA due to the federal funding status of the defendant. What now? You must exhaust all of your administrative remedies before filing your claim. To exhaust your administrative remedies, you must first fill out a form SF-95 for each claim for damages that you are asserting. This is a key to preserving your client’s rights. If you have a potential claim on behalf of a plaintiff, as well as a consortium claim on behalf of a spouse and potentially claims on behalf of children, you must file a separate SF-95 form on behalf of each plaintiff. If you file only one form for the plaintiff who suffered the original injury, you will not preserve the rights of the other potential plaintiffs in your case and their claims will be dismissed.16
In addition to filing individual administrative claims on behalf of all potential plaintiffs, you must make sure that you state the damages you claim. If you do not state a sum certain for each administrative claim, the claim will be dismissed for failing to assert damages. Furthermore, beware of stating too low of a value for your claim, even if you think it is the actual value of that claim. If you claim $500,000.00 in damages and later receive a verdict for $2,000,000.00 in damages, you will only be able to recover the initial amount for which you placed the government on notice through the administrative claim. It is better to place an exorbitant figure on the amount of damages you are claiming, whether or not it is likely to be recovered, because then you will not cap the amount that your plaintiff can recover in his or her federal suit.17
Finally, be sure to have your client, or his or her duly authorized representative, sign the administrative claim forms or attach your retainer agreement or a power of attorney if you sign the form on your client’s behalf. As simple as this requirement may seem, it can be missed and a case can quickly be dismissed.18
If you are dealing with any of the health care centers supported by the FSHCAA he administrative agency where you must file your administrative claim is the U.S. Department of Health and Human Services. If you are dealing with a VA Medical Center, you would file your claim with the U.S. Veterans Administration. If you are dealing with an Indian Health Care Provider you would file your claim with the Bureau of Indian Affairs. A quick internet search should tell you the appropriate federal agency with whom you must file the SF-95 form on behalf of your clients.
Once your administrative claim is filed, the government has six months to take action on it by either negotiation, an award or a denial. You should expect that regardless of its merit it will be denied. If the government does not take action on your administrative claim within six months, you can file a federal complaint for medical malpractice under the FTCA in U.S. District Court. If the government denies your administrative claim within the original six month period, then you have six months from the mailing date of the denial in which you may file your federal complaint in the U.S. District Court. As with all medical malpractice claims, time is of the essence, so you must keep a strict tickler/diary system in place to preserve your client’s rights and protect yourself from liability.
If you follow the applicable federal statutes and rules of civil procedure and keep a close watch on the federal clocks that are ticking for your claim, you should be able to navigate the federal maze to successfully bring your client’s medical malpractice claim under the FTCA.
Endnotes
28 U.S.C § 2671 et. seq.
See id.
28 U.S.C. § 2672.
See 28 U.S.C. § 2401(b).
See 28 U.S.C. § 2679(d)(5).
Ramirez-Carlo v. United States, 496 F.3d 41, 46 (1st Cir. 2007).
McCall v. United States, 310 F.3d 984, 986-87 (7th Cir. 2002).
McIntyre v. United States, 367 F.3d 38, 60-61 (1st Cir. 2004).
Motley v. United States, 295 F.3d 820, 824 (8th Cir. 2002).
See Ramirez-Carlo, 496 F.3d at 46.
Cascone v. United States, 370 F.3d 95, 104 (1st Cir. 2004).
Id.
Skwira v. United States, 344 F.3d 64, 73 (1st Cir. 2003) (quoting United States v. Kubrick, 444 U.S. 111, 121 (1979)).
Kubrick, 444 U.S. at 122.
See Motley, 295 F.3d at 824.
See, e.g., Cormier v. U.S. Dept. Of Labor, 30 F.3d 126 (1st Cir. 1994) (unpublished table text); Rispoli v. United States, 576 F.Supp. 1398 (E.D. NY 1983).
See Cormier, supra.
See, e.g., Triplett v. United States, 501 F.Supp. 118 (D. Nev. 1980).
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