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. Read More

Unconstitutional Time Bars in Washington

By Alex Stein

Schroeder v. Weighall — P.3d —-, 2014 WL 172665 (Wash. 2014), is the second Washington Supreme Court’s decision that voids the Legislature’s time bar for medical malpractice suits.  The first decision, DeYoung v. Providence Medical Center, 960 P.2d 919 (Wash. 1998), voided an eight-year repose provision for violating the constitutional prohibition on special privileges (Article I, section 12). This statutory provision benefited healthcare providers and their insurers at the expense of injured patients whose cause of action accrued over a long period of time and consequently tolled the statute of limitations.  The Court held that the Legislature had no rational basis for blocking suits filed in connection with more-than-eight-years-old incidents of medical malpractice. The Court based that decision on the finding by the National Association of Insurance Commissioners that old medical malpractice incidents account for “less than one percent of all insurance claims nation-wide.” This finding convinced the Court that the “relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated to survive rational basis scrutiny.”

In Schroeder, the Court used the same constitutional prohibition to void a new statutory provision that eliminated tolling of the statute of limitations for minors in medical malpractice actions. Read More

Caveat Veterans: Limitations and Repose in Medical Malpractice Actions under FTCA

By Alex Stein

To be able to sue the government under the Federal Tort Claims Act (FTCA), an aggrieved person must first present his claim to the appropriate agency within two years of the claim’s accrual. 28 U.S.C. § 2401(b). When the agency fails to make a final disposition within six months, the claim is deemed denied and the person may sue the government in federal court. 28 U.S.C. § 2675(a). Alternatively, he may continue the process with the agency. If the agency ultimately denies the claim, he would have another six months to file a suit. 28 U.S.C. § 2401(b).

Augutis v. United States — F.3d —-, 2013 WL 5553084 (7th Cir. 2013), features a medical patient that did exactly this. Alas, when he sued the government for medical malpractice, allegedly committed by his doctors at the Veterans Affairs Hospital in Illinois, it was too late. His suit was blocked by the Illinois statute of repose (735 ILCS 5/13–212(a)) that nullifies an aggrieved patient’s right to sue his doctor within four years of the date of the alleged malpractice. The patient argued that this statute was preempted by the abovementioned provisions of FTCA, but the Seventh Circuit disagreed.  Here is why: Read More

Medical Malpractice and Wrongful Death under Maryland’s Statutes of Limitations and Repose

By Alex Stein

On October 18, Maryland’s Court of Appeals has delivered a precedential ruling on the applicability of the state’s limitation and repose statutes to suits for wrongful death that allegedly resulted from medical malpractice.  Mummert v. Alizadeh— A.3d —-, 2013 WL 5663105 (Md. 2013).

This ruling dealt with the following set of facts:

A family doctor failed to address his patient’s cancer symptoms between 1997 and 2004. In 2004, the patient was diagnosed with cancer that could not be treated successfully. The patient died of cancer on March 14, 2008. On March 8, 2011, her surviving family members filed a wrongful death action against the doctor, who claimed in response that the action was time-barred. The doctor relied on the 3-year limitations period set for wrongful death actions generally and on Maryland’s Health Care Malpractice Claims Act that sets two alternative expiration dates for suits against physicians: “(1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered.” (§ 5–109 of the Courts and Judicial Proceedings Article of the Maryland Code).

The Court dismissed both defenses and allowed the plaintiffs to proceed with their suit. Read More

Using Malpractice Laws to Sabotage Roe v. Wade

By Alex Stein

This method was pioneered by South Dakota and Indiana that set up special “informed consent” requirements for abortion procedures, SDCL § 34-23A-10.1 and IC 16-34-2-1.1. Under these requirements, physicians must tell the pregnant woman (inter alia) that “the abortion will terminate the life of a whole, separate, unique, living human being” with whom she has a relationship that enjoys constitutional protection; that “human physical life begins when a human ovum is fertilized by a human sperm”; that the abortion might lead to depression, suicide ideation, and suicide; and that she should “view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone”; and also have the name, address, and telephone number of a nearby pregnancy help center.

The prize for innovation and ingenuity in this area, however, squarely belongs to Louisiana, whose special abortion-malpractice statute—Act 825, La. Rev. Stat. § 9:2800.12—was upheld this week in K.P. v. LeBlanc, — F.3d —-, 2013 WL 4746488 (5th Cir. 2013).  Act 825 complements Louisiana’s “Woman’s Right to Know Act,” La. Rev. Stat. § 40:1299.35.6, that established “informed consent” requirements for abortion similar to those of South Dakota and Indiana. Read More

The Laches Defense not Available in Medical Malpractice Actions

By Alex Stein

The DC Court of Appeals has ruled last week that the laches defense does not apply in actions for medical malpractice: Naccache v. Taylor, — A.3d —-, 2013 WL 3820942 (D.C. 2013). The Court reasoned that laches is only available in equity proceedings but not in actions at law. For actions at law, held the Court, the applicable time bars are set by the statute of limitations. This statute, the Court explained, accounts for all relevant tradeoffs between plaintiffs’ and defendants’ interests. Hence, “To import laches as a defense to actions at law would [improperly] pit the legislative value judgment embodied in a statute of limitations … against the equitable determinations of individual judges.” In making this ruling, the Court also took notice of the fact that forty-eight states bar laches as a defense for actions at law.

This ruling appears impeccable, but it has a wrinkle. Read More