Medical Malpractice: FTCA’s Trap for the Unwary

By Alex Stein

Anyone interested in medical malpractice must read the First Circuit’s decision in Sanchez v. United States, 740 F.3d 47 (1st Cir. 2014).

Mr. Sanchez’s wife died in a Massachusetts hospital shortly after delivering her third child by c-section. She died from arguably preventable hemorrhaging. Mr. Sanchez and his lawyer thought that they had a 3-year window for filing medical malpractice suit in connection with that death, as prescribed by Massachusetts law, Mass. Gen. Laws Ch. 260, § 2A. Unbeknownst to them, however, the hospital was a federally qualified health center, which made the doctors who treated Mrs. Sanchez “federal employees” under the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233. As a result, Mr. Sanchez could only sue the United States under the Federal Tort Claims Act (FTCA). He wouldn’t mind doing so, but his ability to file such a suit had expired in two years pursuant to FTCA. This predicament is known as FTCA’s trap for the unwary: see here.

To alleviate this predicament, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act”). Under the Westfall Act, an improperly filed claim that ought to have been filed against the United States pursuant to FTCA will be deemed timely if “(A) [it] would have been timely had it been filed on the date that the underlying civil action was commenced, and (B) [it] is presented to the appropriate Federal agency within sixty days after the dismissal of the civil action.” 28 U.S.C. § 2679(d)(5). The Westfall Act, however, does not help plaintiffs such as Mr. Sanchez who waited for more than two years to file their suit pursuant to state law which, unbeknownst to them, was inapplicable.

Mr. Sanchez invoked the “discovery rule” that postpones the accrual of the cause of action for plaintiffs who did not know and could not reasonably suspect that they suffered harm from the defendant’s negligence. This rule, however, was of no avail. Mr. Sanchez’s action arouse out of an unexpected nosocomial death – a circumstance that instills malpractice suspicion in every reasonable plaintiff. Crucially for Mr. Sanchez, he actually acted upon that suspicion when he hired an attorney to investigate a potential malpractice claim against the hospital and its doctors. From that point on, he had two years to file his suit, which he did not do because – once again – he and his attorney mistakenly assumed that they have a three-year window for filing a suit under Massachusetts law.

Mr. Sanchez’s last resort was the doctrine of “equitable tolling.” This doctrine is not readily available for FTCA plaintiffs. Because FTCA waives the federal government’s immunity against liability in torts, the limits under which it authorizes federal courts to hold the United States responsible for tort damages are widely considered jurisdictional. This is particularly true about FTCA’s two-year time bar for filing suits: Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1035–47 (9th Cir. 2013) (holding that courts are not authorized to toll FTCA’s limitations provision); Román–Cancel v. United States, 613 F.3d 37, 42 (1st Cir. 2010) (same).

There is, however, a different interpretation that allows FTCA plaintiffs to benefit from equitable tolling: see, e.g., Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013) (allowing an FTCA plaintiff to use equitable tolling); Gonzalez v. Thaler, ––– U.S. ––––, 132 S.Ct. 641, 648 (2012) (holding that “equitable tolling” depends on statutory interpretation). The First Circuit was willing to follow that interpretation in Mr. Sanchez’s case.

Ultimately, however, this interpretation did not help Mr. Sanchez because his attorney could easily research a federal database,, to find out that Mrs. Sanchez was hospitalized at a federally qualified health center. Mr. Sanchez’s attorney thus did not act with due diligence – an omission that precludes equitable tolling.

The First Circuit cited in this connection (at p. 55) a recent observation by Judge Richard Posner 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 … 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” (Arteaga v. United States, 711 F.3d 828, 834–35 (7th Cir. 2013)). After citing that observation, the First Circuit explained that “neither inaction born of ignorance nor recklessness in the face of a known risk could provide a basis for establishing diligence … [and] due diligence is a sine qua non for equitable tolling.” Id. To quote from Judge Posner again, “Equitable tolling cannot be premised on the incompetence of the plaintiff’s lawyer” (Arteaga, at 835).

Mr. Sanchez consequently had lost his medical malpractice suit but he might now be able to sue his attorney for legal malpractice.

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