Statutes of Repose for Medical Malpractice Suits under FTCA – A New Development

January 17, 2014

Cooper v. United States, 2013 WL 6845988 (E.D.Pa. 2013)

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).

This continued process may allow the agency to outdate the potential suit by taking advantage of state law and the unwary claimant. This is exactly what happened in Cooper v. United States.

On June 25, 2005, the plaintiff received contraindicated treatment at the VA Hospital in Philadelphia, which caused him an arm injury.

The plaintiff filed an administrative complaint to VA on June 29, 2007.

VA delayed its decision till July 17, 2012 (!!). On that day, it denied the plaintiff’s claim because its investigation “did not reveal evidence of any negligent or wrongful act or omission.”

In December 2012, the plaintiff filed a malpractice suit. The plaintiff thus complied with both the two-year statute of limitations for filing an administrative claim with the agency and the six month limitation period for filing a lawsuit in the District Court following a final denial. 28 U.S.C. § 2675(a).

VA nonetheless moved to dismiss the suit based on Pennsylvania’s repose statute, 40 Pa. Con. Stat. § 1303.513(a), which provides that “[N]o cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract.” According to VA, the plaintiff was six months late to file his suit.

The court sided with the plaintiff, holding that FTCA preempts Pennsylvania’s repose statute under the Supremacy Clause. Administrative processing of claims under FTCA, it explained, is crucial for effective implementation of the statutory policies. Preemption occurs here because state law stands as a significant impediment to the federal scheme.

Correspondingly, the court ruled that once a claimant has filed an administrative claim within any applicable state repose period, FTCA preempts further application of that repose statute to bar a lawsuit filed after the administrative claim is denied.

This decision ignores the Seventh Circuit decision in Augutis v. United States, — F.3d —, 2013 WL 5553084 (7th Cir. 2013). Augutis ruled that FTCA’s jurisdictional grant to hold the government liable for tort damages “only covers ‘circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’” (quoting Morisch v. United States, 653 F.3d 522, 530 (7th Cir. 2011)). Hence, FTCA “does not expressly preempt state statutes of repose … to the contrary, it expressly incorporates [them].” FTCA only sets aside limitations statutes conflicting with 28 U.S.C. §§ 2401(b), 2675(a).

Importantly, the Seventh Circuit also decided that administrative claim does not stop the repose period: only a suit filed in court can have this effect. Under this interpretation of FTCA, the plaintiff in Cooper should have sued the United States in court before June 2012 without waiting for VA’s disposition of his claim.

For my discussion of Augutis, see here.