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.”). Read More

The Ill-Designed “Continuous Treatment” Rule for the Health Law of Massachusetts

By Alex Stein

Under Massachusetts law, suits alleging medical malpractice in a treatment of a minor patient must be filed “within three years from the date the cause of action accrues.” G.L.c. 231, § 60D. In a recent case, Parr v. Rosenthal, 57 N.E.3d 947 (Mass. 2016), the Supreme Judicial Court of Massachusetts decided that a patient’s continuous treatment by the same physician can toll this period under certain restrictive conditions. One of those conditions requires the plaintiff to show that the physician continued to treat the patient “for the same or related condition” after committing the alleged malpractice, and that “treatment” in that context includes supervision of, as well as consultation and advice to, other treating physicians. Another condition makes continuous treatment part of the discovery rule that moves the onset of the limitations period to the day on which the patient knew or could have reasonably suspected that her physician treated her negligently. According to the Court, continuous treatment instills in the patient “innocent reliance” that the physician treats her properly, which makes the physician’s malpractice not reasonably discoverable. Moreover, innocent reliance can even be present when the patient realizes that she sustained harm from the physician’s treatment. As the Court explained, “A patient who continues under the care of the same physician will still have the same challenges in learning whether the harm [she] suffered from the physician’s treatment arose from the physician’s negligence.” Based on these observations, the Court decided that the “continuous treatment” rule will not benefit patients who affirmatively suspected that they received negligent treatment from their physician. Such patients, the Court held, cannot show “innocent reliance.” Read More

Undiagnosed Cancer under Alabama’s Statute of Repose

By Alex Stein

Alabama Code Section 6–5–482(a) that extends to “all actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort” prescribes, (inter alia) that –

“in no event may the action be commenced more than four years after such act.”

The Alabama Supreme Court interprets this provision as beginning the four-year repose period when the plaintiff suffers “legal injury” from the defendant’s malpractice. See Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1196 (Ala. 2008) (“‘[w]hen the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6–5–482 commences when the legal injury occurs’” (quoting Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala. 1994)). This interpretation is far more generous to plaintiffs than the conventional doctrine of repose, under which the countdown of the statutory repose period begins on the day of the physician’s malpractice even when the patient develops the resulting illness or injury later on. For my analysis of the conventional doctrine of repose, see here and here.

This plaintiff-friendly interpretation did not help the plaintiff in Cutler v. U. Ala. Health Services Foundation, — So.3d —- 2016 WL 3654760 (Ala. 2016). Read More

Medical Malpractice vs. General Negligence under California Law

By Alex Stein

In its recent decision, Flores v. Presbyterian Intercommunity Hosp., 369 P.3d 229 (Ca. 2016), the California Supreme Court has sharpened the critical distinction between “medical malpractice” and general negligence.

Under California statute, a plaintiff’s ability to file a medical malpractice suit expires in one year after the accrual of the cause of action. The statute tolls this period for two additional years, provided that the plaintiff files the suit within one year after he discovers the injury or could reasonably have discovered it. Cal. Code Civ. Proc. § 340.5 (providing that suits for medical malpractice must be filed “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”). For other personal injury suits, the limitations period is “two years of the date on which the challenged act or omission occurred.” Cal. Code Civ. Proc. § 335.1.

In the case at bar, the plaintiff was injured when one of the rails on her hospital bed collapsed. Read More

Fraudulent Concealment by Nonfeasance as an Exception to the Statute of Repose

By Alex Stein

As a general rule, malpractice suits against physicians and hospitals must be filed within the repose period that starts running on the day of the alleged malpractice. Expiration of that period kills the plaintiff’s suit regardless of whether she was able to file it on time. Unlike statutes of limitations, this absolute time-bar does not depend on the accrual of the plaintiff’s cause of action nor is it subject to the discovery rule and equitable tolling. Typically, states recognize only one exception to the statute of repose: fraudulent concealment. Under that exception, when a negligent doctor or hospital intentionally gives the aggrieved patient (or her successor) false or misleading information about the treatment, the patient (or her successor) becomes entitled to toll the repose period until she becomes aware of the true facts. Many courts have ruled that this exception was only available to plaintiffs who could establish affirmative misrepresentation on the part of the doctor or the hospital. According to these decisions, fraud capable of tolling the repose period could only be committed by misfeasance, that is, by active conduct rather than by failure to disclose the relevant facts. More recent court decisions, however, obliterate the omission-commission distinction in the context of fraudulent concealment by doctors and hospitals: see, e.g., DeLuna v. Burciaga, 857 N.E.2d 229, 245-46 (Ill. 2006).

A recent decision of Michigan’s Court of Appeals, In re Estate of Doyle, 2016 WL 857204 (Mich.App.2016), continues this trend. Read More

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). Read More

“Medical Malpractice” vs. General Negligence: The Case of Falling Accidents

By Alex Stein

As I wrote previously – see here, here, here, here, here, here, here, here, and here – whether a tort action sounds in “medical malpractice” as opposed to general negligence, or vice versa, can be crucial. Suits sounding in “medical malpractice” must satisfy special requirements that include shortened limitations periods, statutes of repose, and expert affidavits (or certificates of merit) at filing. In many states, those suits are also subject to special damage caps. Suits sounding in general negligence are free from these constraints. Filing and prosecuting those suits is consequently not as onerous and expensive as filing and prosecuting medical malpractice actions. For that reason, we witness many disputes over this pivotal categorization issue. Read More

Do Medical-Malpractice Time Bars Apply to Hospitals’ Indemnification Suits Against Doctors?

By Alex Stein

The South Carolina Supreme Court has recently decided that a hospital’s indemnification suit against doctors whose malpractice made it pay compensation to the aggrieved patient is subject to the same time bars as patients’ actions against defaulting physicians. Columbia/CSA-HS Greater Columbia Healthcare System, LP v…., — S.E.2d —- (2015), 2015 WL 249536 (S.C. 2015).

Chief Justice Jean Hoefer Toal wrote a vehement dissent in which she was joined by Justice Kaye Hearn. In that dissent, she wrote that “The majority’s holding represents a fundamental misunderstanding of the nature of indemnification actions which I fear will have far-reaching effects on the ability to seek indemnification.”

The Chief Justice was absolutely right. Read More

Medical Malpractice and the “Continuous Act” Exceptions to the Statute of Repose

By Alex Stein

Cefaratti v. Aranow, — A.3d —- (Conn.App. 2014) is a textbook decision on the “continuous act” exceptions to the statute of repose. This decision of the Connecticut Appeals Court draws an important – but oft-missed – distinction between “continuous wrong” and “continuous treatment.”

Back in 2003, the plaintiff underwent open gastric bypass surgery in an attempt to cure her morbid obesity. Her follow-up treatment and monitoring took place between 2004 and the summer of 2009. All these procedures have been carried out by the same surgeon, the defendant, at a hospital in which he had attending privileges as an independent contractor.

The plaintiff testified at her deposition that on each of her post-operative visits, she told the defendant that she was experiencing abdominal pain. In August 2009, after being diagnosed with breast cancer by another physician, the plaintiff had a CT scan of her chest, abdomen, and pelvis, which revealed the presence of a foreign object in her abdominal cavity. This object was a surgical sponge that the defendant negligently left when he operated the plaintiff in 2003. Following that discovery, the plaintiff filed a malpractice suit against the defendant. Read More

Medical Malpractice in Reproductive-Choice Procedures

By Alex Stein

Malpractice suits filed in connection with reproductive-choice procedures often present unique problems. The suit filed by Jami Conner against her former gynecologist, Dr. Bryan Hodges, is a case in point. The plaintiff, a mother of two children, decided that she did not want to have more children. To avoid future pregnancy, she asked the defendant to perform bilateral ligation of her tubes and the defendant granted her wish. Two and a half years later, however, the plaintiff discovered that she was pregnant again. Her suit against the defendant promptly followed that discovery. Read More