Preserving Your Clients' Right to Recovery

Therefore, it is imperative that an administrative claim be filed with the appropriate agency in order to preserve a plaintiff's rights. The trick sometimes may be in locating the 'appropriate agency.' Although it may seem intuitive that the appropriate place would be the place of the injury ' such as the hospital where the injury occurred ' this may not be the case. When a plaintiff files his or her claim with the wrong agency, the act requires that agency to forward it to the appropriate office. So, even if the claim is initially filed in the wrong place, no harm done, right? Well, maybe. The FTCA imposes a 2-year statute of limitations on the filing of claims from the date when the action accrued, which is not tolled by a claim that's filed with the wrong government agency. 28 U.S.C. ' 2401(b). If a claim is presented to a hospital staff member, for instance, and the claim should have been filed with an office across town, the hospital should see that it is forwarded. If it does so promptly, but the claim reaches the correct claims office 2 years and 2 days after the injury accrued, the claim will be deemed untimely and will be denied outright. (If the hospital negligently or purposely fails to have it delivered to the appropriate agency, however, the statute of limitations will be tolled.) Therefore, if time is running out for your client to make his or her claim, it is imperative that it be filed with the proper authority. If you are unsure of the appropriate filing office, be sure to ask.

Fixing the Date

Fixing the date that the action accrued for purposes of judging the claim's timeliness is a fertile source for litigation. As with most limitation periods for bringing malpractice suits, the limitations period under the FTCA does not begin to run until the plaintiff has discovered or should have discovered both the critical facts of the injury and its cause. United States v. Kubrick, 444 U.S. 111, 120, 122-23, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). For instance, in a recent case, a former service member received dental implants in 1979 and 1984, but did not learn until 1992 that she should have been informed at the time of the operations that the implants were only temporary and would need to be removed. The court ruled that the clock on the claim did not begin to run until 1992, when another dentist informed the plaintiff of the cause of her dental pain. Coffie v. United States, Case Nos. 00-6131, 00-6258, 43 Fed. Appx. 808; 2002 U.S. App. LEXIS 15792, (6th Cir. 8/2/02). Not knowing that a right of action under the FTCA exists, however, is no excuse for not filing within the required limitations period if the injury itself was known of for more than 2 years. In the case of Motley v. U.S., No. 01-2353, 295 F.3d 820; 2002 U.S. App. LEXIS 13294 (8th Cir., 7/5/02), plaintiffs, parents of a deceased child who they claimed was stillborn due to the negligence of staff at People's Health Center Inc. (PHC) in St. Louis, argued that the 2-year FTCA statute of limitations should be equitably tolled because they filed a timely state court action and they were unaware that PHC and its medical staff were federal employees for FTCA purposes. The court found that the parents were not affirmatively misled by the health center, had ample time to timely file an administrative FTCA claim, and failed to inquire into the FTCA's possible application to their claim. Their failure to do so was a mistake of law, so the parents were not entitled to equitable tolling.

'A Sum Certain'

The form of the administrative claim is less important than its timeliness. Once it receives the claim, most agencies will ask that its own claim forms be filled out by the claimant or his or her attorney anyway. The only inflexible requirement is that the claim be for a 'a sum certain.' If the amount of damages is less than certain, an estimate must be made or the claim may be deemed inadequate, as was a portion of the claim that became the subject of a lawsuit under the FTCA in Blair v. Internal Revenue Service, No. 00-16010, 304 F.3d 861; 2002 U.S. App. LEXIS 18448 (9th Cir., 9/9/02). In the Blair case, plaintiff brought suit for injuries suffered when he was arrested by Internal Revenue Service agents. He claimed loss of wages resulting from time off work to recover from injuries he suffered from rough handling by IRS personnel, and from tight handcuffs. The district court dismissed the claim for lack of subject matter jurisdiction because Blair's claim, filed with the IRS prior to instituting suit, demanded a sum certain for wage loss resulting from the injury, but also averred that medical expenses were still being incurred such that a sum certain for those expenses could not be provided. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the district court had jurisdiction to adjudicate the wage loss claim because a sum certain was provided, but did not have jurisdiction to adjudicate the medical expenses claim for which no sum certain was provided. Therefore, because the claimed amount can be amended up until the time a lawsuit is filed, if it is too difficult to determine a sum certain at the time the claim is filed, an estimate should always be made. It can be changed later, if necessary.

Following timely submission of a written claim for a sum certain, a federal agency generally has 6 months to reach a final disposition on the claim. If the federal agency denies the claim, the claimant has 6 months thereafter to file suit in federal court. If the federal agency fails to make a final disposition of the claim within 6 months, the claimant may deem the agency's failure 'a final denial of the claim' and may proceed with his or her suit under the FTCA (again within the 6-month period previously noted). 28 U.S.C.S. ' 2675(a). A district court must dismiss a suit brought under the FTCA if it was filed before the claim was denied by the federal agency (either expressly or implicitly).

Amount of Damages

The amount of damages recoverable for medical malpractice claims under the FTCA is limited to that of a private employer under like circumstances. 28 U.S.C.S. ” 1346(b), 2671 et. seq. As an illustration of this principle, the case Haceesa v. United States, 309 F.3d 722 (10th Cir., 10/24/02), is instructive. In Haceesa, plaintiffs' decedent Hardy Haceesa went to the emergency room complaining of a fever, difficult and painful breathing, chest discomfort and general achiness. He told the nurse he thought his condition could be the result of exposure to mice. Haceesa was diagnosed with bronchitis, sent home, and told to check back at the local clinic on Monday. By Tuesday evening, he was dead. Only after his death was Haceesa's disease diagnosed correctly: He died of hantavirus pulmonary syndrome, a rare, deadly disease caused by exposure to airborne particles of the urine of infected mice and characterized in its early stages by flu-like symptoms. The hospital at which Haceesa sought treatment was the Northern New Mexico Navajo Hospital in Shiprock, NM, which is owned and operated by the Indian Health Service, an agency of the United States Department of Health and Human Services. Plaintiffs, decedent's widow and child, sued the federal government under the FTCA. After a bench trial, the district court awarded plaintiffs $2.1 million in damages. The United States appealed the amount, arguing that under New Mexico law, damage awards payable by health care providers as a result of malpractice cannot exceed $600,000 per occurrence. The appellate court found that the nurse and hospital administrators were health care providers within the meaning of the statute, and reduced damages to the statutory amount, $600,000.

The Military

Active-duty military members have special problems in recovering from the federal government for medical malpractice injuries because most of their claims are barred by the so-called 'Feres doctrine.' Under this doctrine, active-duty personnel are barred from recovering damages in civil suit against the United States for injuries suffered incident to active-duty military service. See Feres v. United States, 340 U.S. 135, 95 L.Ed. 152, 71 S. Ct. 153 (1950). Almost anything that happens to a military service member, on or off duty, is considered 'incident to active-duty military service,' so military personnel should be advised that there is usually little point in trying to recover under the FTCA. In addition, be aware that family members wishing to sue the United States for injuries deriving from an active-duty service member's injuries (for example, loss of consortium) will also be barred by the Feres doctrine. See Lombard v. United States, 223 U.S. App. D.C. 102, 690 F.2d 215 (D.C. Cir 1982). On the other hand, active-duty service members have been held to have standing to sue the federal government for injuries to non-military family members. For example, in Romero v. United States of America, 954 F.2d 223 (4th Cir., 1992), the dismissal of a claim on Feres doctrine grounds was reversed where an active duty service member allegedly received substandard prenatal treatment that caused injuries to her fetus. The mother had an incompetent cervix, and because the condition was not treated, her son was born prematurely and with cerebral palsy. The appellate court ruled that because the lack of an adequate treatment plan injured the civilian child and had no effect on the health of the service-member mother ' because an incompetent cervix has no health effects on a woman but can have major effects on her unborn child ' the Feres doctrine did not apply to bar suit by the child, nor did it bar his parents' derivative claims for his injuries.

Conclusion

Finally, parties bringing claims under the FTCA should be advised that any disability payments they receive from the government for the injuries complained of in the claim will be offset under the terms or 38 U.S.C. ' 1151(b), which states that those who recover damages under the FTCA will have their government disability checks withheld until the amount of the benefits withheld equals the amount of the award. Morgan v. United States, 968 F.2d 200, 207 (2d Cir. 1992). That amount includes attorneys fees and does not distinguish between economic and non-economic damages. Bryan v. West, 13 Vet. App. 482, 487-88 (Vet. App. 2000).

The administrative claim requirement of the FTCA may slow the process for plaintiffs in some instances, but it can often lead to a satisfactory settlement that comes about sooner than it would through the federal court system. At worst, it is a necessary evil that attorneys with clients who have claims against the federal government must become familiar with in order to preserve and pursue their clients' rights.

Janice G. Inman, Esq., is a member of the New York, Pennsylvania and California Bars, and serves as Editor-in-Chief of this newsletter.

The exclusive remedy for patients injured due to medical malpractice by federal employees acting within the scope of their employment is through the Federal Tort Claims Act (FTCA). Under the FTCA, the United States allows claims to be made against it in certain circumstances. However, because the FTCA is a waiver of sovereign immunity, strict compliance with the requirements for filing is necessary in order to preserve your clients' rights to recovery. Failure to be aware of these requirements could leave a plaintiff with little or no redress for his or her injuries.

Filing the Administrative Claim

Before any lawsuit can be properly filed, claimants seeking recovery from the United States are required under the FTCA to exhaust all administrative remedies. This means that an administrative claim must be filed with the government, and failure to do so will result in dismissal of any lawsuit on jurisdictional grounds. For example, in the case of Estremera-Velex v. Hospital General Castaner Inc., Civ. No. 02-1803 (JAG), 2002 U.S. Dist LEXIS 15375 6/28/02), the plaintiff brought suit against a hospital in the Puerto Rico Court of First Instance. Because the hospital was a federally supported health center, the federal government moved to be substituted as defendant and removed the action to the U.S. District Court for the District of Puerto Rico. After removal, the federal court dismissed the case because the plaintiffs had not made an administrative claim as required by the FTCA before filing suit.

Therefore, it is imperative that an administrative claim be filed with the appropriate agency in order to preserve a plaintiff's rights. The trick sometimes may be in locating the 'appropriate agency.' Although it may seem intuitive that the appropriate place would be the place of the injury ' such as the hospital where the injury occurred ' this may not be the case. When a plaintiff files his or her claim with the wrong agency, the act requires that agency to forward it to the appropriate office. So, even if the claim is initially filed in the wrong place, no harm done, right? Well, maybe. The FTCA imposes a 2-year statute of limitations on the filing of claims from the date when the action accrued, which is not tolled by a claim that's filed with the wrong government agency. 28 U.S.C. ' 2401(b). If a claim is presented to a hospital staff member, for instance, and the claim should have been filed with an office across town, the hospital should see that it is forwarded. If it does so promptly, but the claim reaches the correct claims office 2 years and 2 days after the injury accrued, the claim will be deemed untimely and will be denied outright. (If the hospital negligently or purposely fails to have it delivered to the appropriate agency, however, the statute of limitations will be tolled.) Therefore, if time is running out for your client to make his or her claim, it is imperative that it be filed with the proper authority. If you are unsure of the appropriate filing office, be sure to ask.

Fixing the Date

Fixing the date that the action accrued for purposes of judging the claim's timeliness is a fertile source for litigation. As with most limitation periods for bringing malpractice suits, the limitations period under the FTCA does not begin to run until the plaintiff has discovered or should have discovered both the critical facts of the injury and its cause. United States v. Kubrick , 444 U.S. 111, 120, 122-23, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). For instance, in a recent case, a former service member received dental implants in 1979 and 1984, but did not learn until 1992 that she should have been informed at the time of the operations that the implants were only temporary and would need to be removed. The court ruled that the clock on the claim did not begin to run until 1992, when another dentist informed the plaintiff of the cause of her dental pain. Coffie v. United States, Case Nos. 00-6131, 00-6258, 43 Fed. Appx. 808; 2002 U.S. App. LEXIS 15792, (6th Cir. 8/2/02). Not knowing that a right of action under the FTCA exists, however, is no excuse for not filing within the required limitations period if the injury itself was known of for more than 2 years. In the case of Motley v. U.S. , No. 01-2353, 295 F.3d 820; 2002 U.S. App. LEXIS 13294 (8th Cir., 7/5/02), plaintiffs, parents of a deceased child who they claimed was stillborn due to the negligence of staff at People's Health Center Inc. (PHC) in St. Louis, argued that the 2-year FTCA statute of limitations should be equitably tolled because they filed a timely state court action and they were unaware that PHC and its medical staff were federal employees for FTCA purposes. The court found that the parents were not affirmatively misled by the health center, had ample time to timely file an administrative FTCA claim, and failed to inquire into the FTCA's possible application to their claim. Their failure to do so was a mistake of law, so the parents were not entitled to equitable tolling.

'A Sum Certain'

The form of the administrative claim is less important than its timeliness. Once it receives the claim, most agencies will ask that its own claim forms be filled out by the claimant or his or her attorney anyway. The only inflexible requirement is that the claim be for a 'a sum certain.' If the amount of damages is less than certain, an estimate must be made or the claim may be deemed inadequate, as was a portion of the claim that became the subject of a lawsuit under the FTCA in Blair v. Internal Revenue Service, No. 00-16010, 304 F.3d 861; 2002 U.S. App. LEXIS 18448 (9th Cir., 9/9/02). In the Blair case, plaintiff brought suit for injuries suffered when he was arrested by Internal Revenue Service agents. He claimed loss of wages resulting from time off work to recover from injuries he suffered from rough handling by IRS personnel, and from tight handcuffs. The district court dismissed the claim for lack of subject matter jurisdiction because Blair's claim, filed with the IRS prior to instituting suit, demanded a sum certain for wage loss resulting from the injury, but also averred that medical expenses were still being incurred such that a sum certain for those expenses could not be provided. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the district court had jurisdiction to adjudicate the wage loss claim because a sum certain was provided, but did not have jurisdiction to adjudicate the medical expenses claim for which no sum certain was provided. Therefore, because the claimed amount can be amended up until the time a lawsuit is filed, if it is too difficult to determine a sum certain at the time the claim is filed, an estimate should always be made. It can be changed later, if necessary.

Following timely submission of a written claim for a sum certain, a federal agency generally has 6 months to reach a final disposition on the claim. If the federal agency denies the claim, the claimant has 6 months thereafter to file suit in federal court. If the federal agency fails to make a final disposition of the claim within 6 months, the claimant may deem the agency's failure 'a final denial of the claim' and may proceed with his or her suit under the FTCA (again within the 6-month period previously noted). 28 U.S.C.S. ' 2675(a). A district court must dismiss a suit brought under the FTCA if it was filed before the claim was denied by the federal agency (either expressly or implicitly).

Amount of Damages

The amount of damages recoverable for medical malpractice claims under the FTCA is limited to that of a private employer under like circumstances. 28 U.S.C.S. ” 1346(b), 2671 et. seq. As an illustration of this principle, the case Haceesa v. United States , 309 F.3d 722 (10th Cir., 10/24/02), is instructive. In Haceesa, plaintiffs' decedent Hardy Haceesa went to the emergency room complaining of a fever, difficult and painful breathing, chest discomfort and general achiness. He told the nurse he thought his condition could be the result of exposure to mice. Haceesa was diagnosed with bronchitis, sent home, and told to check back at the local clinic on Monday. By Tuesday evening, he was dead. Only after his death was Haceesa's disease diagnosed correctly: He died of hantavirus pulmonary syndrome, a rare, deadly disease caused by exposure to airborne particles of the urine of infected mice and characterized in its early stages by flu-like symptoms. The hospital at which Haceesa sought treatment was the Northern New Mexico Navajo Hospital in Shiprock, NM, which is owned and operated by the Indian Health Service, an agency of the United States Department of Health and Human Services. Plaintiffs, decedent's widow and child, sued the federal government under the FTCA. After a bench trial, the district court awarded plaintiffs $2.1 million in damages. The United States appealed the amount, arguing that under New Mexico law, damage awards payable by health care providers as a result of malpractice cannot exceed $600,000 per occurrence. The appellate court found that the nurse and hospital administrators were health care providers within the meaning of the statute, and reduced damages to the statutory amount, $600,000.

The Military

Active-duty military members have special problems in recovering from the federal government for medical malpractice injuries because most of their claims are barred by the so-called 'Feres doctrine.' Under this doctrine, active-duty personnel are barred from recovering damages in civil suit against the United States for injuries suffered incident to active-duty military service. See Feres v. United States , 340 U.S. 135, 95 L.Ed. 152, 71 S. Ct. 153 (1950). Almost anything that happens to a military service member, on or off duty, is considered 'incident to active-duty military service,' so military personnel should be advised that there is usually little point in trying to recover under the FTCA. In addition, be aware that family members wishing to sue the United States for injuries deriving from an active-duty service member's injuries (for example, loss of consortium) will also be barred by the Feres doctrine. See Lombard v. United States , 223 U.S. App. D.C. 102, 690 F.2d 215 (D.C. Cir 1982). On the other hand, active-duty service members have been held to have standing to sue the federal government for injuries to non-military family members. For example, in Romero v. United States of America , 954 F.2d 223 (4th Cir., 1992), the dismissal of a claim on Feres doctrine grounds was reversed where an active duty service member allegedly received substandard prenatal treatment that caused injuries to her fetus. The mother had an incompetent cervix, and because the condition was not treated, her son was born prematurely and with cerebral palsy. The appellate court ruled that because the lack of an adequate treatment plan injured the civilian child and had no effect on the health of the service-member mother ' because an incompetent cervix has no health effects on a woman but can have major effects on her unborn child ' the Feres doctrine did not apply to bar suit by the child, nor did it bar his parents' derivative claims for his injuries.

Conclusion

Finally, parties bringing claims under the FTCA should be advised that any disability payments they receive from the government for the injuries complained of in the claim will be offset under the terms or 38 U.S.C. ' 1151(b), which states that those who recover damages under the FTCA will have their government disability checks withheld until the amount of the benefits withheld equals the amount of the award. Morgan v. United States , 968 F.2d 200, 207 (2d Cir. 1992). That amount includes attorneys fees and does not distinguish between economic and non-economic damages. Bryan v. West , 13 Vet. App. 482, 487-88 (Vet. App. 2000).

The administrative claim requirement of the FTCA may slow the process for plaintiffs in some instances, but it can often lead to a satisfactory settlement that comes about sooner than it would through the federal court system. At worst, it is a necessary evil that attorneys with clients who have claims against the federal government must become familiar with in order to preserve and pursue their clients' rights.

Janice G. Inman, Esq., is a member of the New York, Pennsylvania and California Bars, and serves as Editor-in-Chief of this newsletter.