Trap for the Unwary Works Again: Federal Healthcare and the Limitations Provision of the Federal Tort Claims Act

Phillips v. Generations Family Health Center, — Fed.Appx. — (2016), 2016 WL 5340278 (2d Cir. 2016)

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.”).

The patient moves her suit to a federal court and petitions for equitable tolling, now unquestionably available as per United States v. Wong, 35 S.Ct. 1625 (2015). The court, however, has no choice but deny this petition because the attorney who went to a state court in Connecticut on the patient’s behalf, instead of suing the physician in a federal court, did not act with due diligence. As federal courts have held on several occasions, such omissions preclude equitable tolling. See Sanchez v. United States, 740 F.3d 47 (1st Cir. 2014), and Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013).

Under these dire circumstances, which I once described as a “trap for the unwary,” the patient’s only recourse is to sue her attorney for malpractice, as suggested in Arteaga at 834-35 (“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.”).

In the case at bar, the Second Circuit confirmed this conclusion while clarifying (just in case…) that “We take no position as to whether such a suit would be successful here.” It’s about time that attorneys representing plaintiffs in medical malpractice suits check on their defendants.