Initiating Medical Malpractice Cases In Federal Court

The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2401(b), 2671 et seq.; 2680, is the exclusive remedy for claims against federal employees and qualified health centers. Under the provisions of the FTCA, an action may not be instituted upon a claim against the United States for money damages caused by the negligent act of any federal employee acting within the scope of his employment, unless the claimant first presents the claim to the appropriate federal agency and the claim is finally denied by the agency in writing and sent by certified or registered mail. If the agency fails to make a final disposition of the claim within six months after it is filed, the claimant may deem the claim denied. 28 U.S.C. 2675(a).

The first concern for all practitioners handling medical malpractice cases in federal court, therefore, is the initial processing of the claim. Once it is determined that the health care provider is a federal employee, or the health clinic qualifies as a federally funded health center under 42 U.S.C. 233 (g); (n), a “claim for damage, injury or death” (Standard Form 95) must be filed within two years of the accrual of the cause of action. The Department of Health and Human Services oversees programs for federally supported health care centers and is the proper agency for presentation of the claim.

Making the Claim

A claimant must first exhaust his administrative remedies as a prerequisite to the commencement of a civil action in tort. This jurisdictional prerequisite cannot be waived. In order for a claim to be valid, damages must be stated in a sum certain (exact dollar amount). 28 U.S.C. 2675(b); 28 C.F.R. 14.1(a). It is imperative that the claim form be completed in as much detail as possible and include all medical documentation in support of the claim. The claim may be signed either by the claimant or by a duly authorized agent or legal representative, provided that satisfactory evidence is submitted with the claim, establishing an expressed authority to act on behalf of the claimant. If the claim is signed by the agent or legal representative, it must show the title or legal capacity of the person signing and be accompanied by evidence of his authority to present the claim.

In support of a claim for personal injury or death, the claimant should submit a written report by the attending physician, showing the nature and extent of injury, the nature and extent of treatment, the degree of permanent disability, if any, the prognosis and the period of hospitalization or incapacitation. Copies of itemized bills for medical, hospital or burial expenses actually incurred must be attached to the claim. A claim is deemed presented when it is received by the appropriate agency, not when it is mailed.

Assuming you have filed the claim in proper form and with the proper agency, you will receive a letter from that agency stating: “therefore, your client's administrative tort claim has been properly filed with this Department for the named health center and its involved employee(s).” Receipt of this letter is essential in the proper processing of the claim. Be certain that the agency has responded to the claim and has acknowledged that it was properly submitted.

Once the claim is acknowledged to have been properly filed, should the agency fail to make a final disposition within six months of the filing, you may consider the claim denied and start suit. If, however, the claim is denied at any time after it is submitted, you must file suit within six months of the denial or your claim will be forever barred.

Do Not Assume the FTCA Is Inapplicable

While it is certainly easy to recognize that a claim against a veteran's hospital would fall within the FTCA, and therefore require the exhaustion of administrative remedies, it is often difficult to determine if the individual health care provider and/or the health center is a “federally qualified health center” and therefore subject to this procedure. As an example, suppose your client received treatment at one of these New Jersey facilities: North Hudson Community Action Corporation Health Center, Horizon Health Center or Paterson Community Health Center. While your initial thought may be that the FTCA is inapplicable, the fact is that each is a qualified health center requiring notice. It is almost never safe to assume otherwise.

Resources exist for determining whether a facility is a federally qualified health center. For example, in New Jersey, there are two websites that list all qualified health centers in the State and provide additional assistance in prosecuting claims (See www.njpca.org/fqhc/directory.aspx; www.raconline.org/infoguides/clinics/fqhc.php). Similar resources can likely be found in other jurisdictions.

Certain officers and employees of federally qualified health centers are also entitled to the procedures and protections afforded to federal employees under the FTCA. Specifically, under 42 U.S.C. 233(g)(1)(A), “any officer, governing board member, or employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner (subject to paragraph (5)), shall be deemed to be an employee of the Public Health Service.” The individual physician will be deemed a federal employee where: “(A) the individual normally performs on average at least 32 1/2 hours of service per week for the entity for the period of the contract; or (B) in the case of an individual who normally performs an average of less than 32 1/2 hours of services per week for the entity for the period of the contract, the individual is a licensed or certified provider of services in the fields of family practice, general internal medicine, general pediatrics, or obstetrics and gynecology.” If the employee does not satisfy this part of the statute, notice is not required as to that individual and suit does not have to be filed in the federal court. It is more likely, however, that the individual health care provider at the health center will be deemed a federal employee. If so, the government will file a “certification of scope of employment” in which the government concedes that the individual was acting within the scope of federal employment on the dates and times in question. With the filing of this certification, the lawsuit should name only the United States of America as the defendant, not the health care center and not the individual employee.

Have We Missed the Boat?

There may be a situation in which a lawsuit against a health center not known to be a qualified health center, and/or an employee of that health center, is filed in state court since the claimant believes that the federal government is in no way involved in the business of the healthcare providers. Subsequently, and after the two-year statute of limitations as to the notice provision, it is discovered, for the first time, that, in fact, the defendants do qualify under the federal statutes. What is the claimant to do under these circumstances?

Let's look at the U.S. Court of Appeals for the First Circuit, which has held that a claim accrues under the FTCA “when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the factual basis for the cause of action.” Furthermore, “[t]he test for whether a plaintiff should have discovered necessary facts is an objective one.”

Thus, a determination as to when a cause of action accrues under this “discovery rule” involves a two-step inquiry. Patterson v. United States, 372 F. Supp. 2d 195, 200 (D. Mass 2005). First, the court must determine “whether sufficient facts were available to provoke a reasonable person in the plaintiff's circumstances to inquire or investigate further” with respect to the factual basis for the cause of action. Once this duty to investigate is established, the plaintiff is deemed to have knowledge of what she would have discovered through a reasonably diligent investigation.

Second, the court must determine “whether the plaintiff, if armed with the results of that investigation, would know enough to permit a reasonable person to believe that she had been injured and that there is a causal connection between the government and her injury.” (Emphasis added.) If a reasonable person would not believe that she had been injured and that there was a causal connection between the government and her injury, the plaintiff's claim has not accrued under the FTCA.

Obviously, these are fact-sensitive issues, and each case will be decided on its own merits. Therefore, it is even more important for the practitioner to be vigilant in its investigation in order to determine the status of the health care provider.

Conclusion

The practitioner must be meticulous in processing any claim under the FTCA. Those involving medical malpractice with the added issue of identifying the health care provider as a federal employee can be tricky. It is imperative that the attorney determine the eligibility of the health care provider, and then carefully prepare and file the processing documents to comply with the applicable rules. From that point on, the process is substantially the same as a state court case.

The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2401(b), 2671 et seq.; 2680, is the exclusive remedy for claims against federal employees and qualified health centers. Under the provisions of the FTCA, an action may not be instituted upon a claim against the United States for money damages caused by the negligent act of any federal employee acting within the scope of his employment, unless the claimant first presents the claim to the appropriate federal agency and the claim is finally denied by the agency in writing and sent by certified or registered mail. If the agency fails to make a final disposition of the claim within six months after it is filed, the claimant may deem the claim denied. 28 U.S.C. 2675(a).

The first concern for all practitioners handling medical malpractice cases in federal court, therefore, is the initial processing of the claim. Once it is determined that the health care provider is a federal employee, or the health clinic qualifies as a federally funded health center under 42 U.S.C. 233 (g); (n), a “claim for damage, injury or death” (Standard Form 95) must be filed within two years of the accrual of the cause of action. The Department of Health and Human Services oversees programs for federally supported health care centers and is the proper agency for presentation of the claim.

Making the Claim

A claimant must first exhaust his administrative remedies as a prerequisite to the commencement of a civil action in tort. This jurisdictional prerequisite cannot be waived. In order for a claim to be valid, damages must be stated in a sum certain (exact dollar amount). 28 U.S.C. 2675(b); 28 C.F.R. 14.1(a). It is imperative that the claim form be completed in as much detail as possible and include all medical documentation in support of the claim. The claim may be signed either by the claimant or by a duly authorized agent or legal representative, provided that satisfactory evidence is submitted with the claim, establishing an expressed authority to act on behalf of the claimant. If the claim is signed by the agent or legal representative, it must show the title or legal capacity of the person signing and be accompanied by evidence of his authority to present the claim.

In support of a claim for personal injury or death, the claimant should submit a written report by the attending physician, showing the nature and extent of injury, the nature and extent of treatment, the degree of permanent disability, if any, the prognosis and the period of hospitalization or incapacitation. Copies of itemized bills for medical, hospital or burial expenses actually incurred must be attached to the claim. A claim is deemed presented when it is received by the appropriate agency, not when it is mailed.

Assuming you have filed the claim in proper form and with the proper agency, you will receive a letter from that agency stating: “therefore, your client's administrative tort claim has been properly filed with this Department for the named health center and its involved employee(s).” Receipt of this letter is essential in the proper processing of the claim. Be certain that the agency has responded to the claim and has acknowledged that it was properly submitted.

Once the claim is acknowledged to have been properly filed, should the agency fail to make a final disposition within six months of the filing, you may consider the claim denied and start suit. If, however, the claim is denied at any time after it is submitted, you must file suit within six months of the denial or your claim will be forever barred.

Do Not Assume the FTCA Is Inapplicable

While it is certainly easy to recognize that a claim against a veteran's hospital would fall within the FTCA, and therefore require the exhaustion of administrative remedies, it is often difficult to determine if the individual health care provider and/or the health center is a “federally qualified health center” and therefore subject to this procedure. As an example, suppose your client received treatment at one of these New Jersey facilities: North Hudson Community Action Corporation Health Center, Horizon Health Center or Paterson Community Health Center. While your initial thought may be that the FTCA is inapplicable, the fact is that each is a qualified health center requiring notice. It is almost never safe to assume otherwise.

Resources exist for determining whether a facility is a federally qualified health center. For example, in New Jersey, there are two websites that list all qualified health centers in the State and provide additional assistance in prosecuting claims (See www.njpca.org/fqhc/directory.aspx; www.raconline.org/infoguides/clinics/fqhc.php). Similar resources can likely be found in other jurisdictions.

Certain officers and employees of federally qualified health centers are also entitled to the procedures and protections afforded to federal employees under the FTCA. Specifically, under 42 U.S.C. 233(g)(1)(A), “any officer, governing board member, or employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner (subject to paragraph (5)), shall be deemed to be an employee of the Public Health Service.” The individual physician will be deemed a federal employee where: “(A) the individual normally performs on average at least 32 1/2 hours of service per week for the entity for the period of the contract; or (B) in the case of an individual who normally performs an average of less than 32 1/2 hours of services per week for the entity for the period of the contract, the individual is a licensed or certified provider of services in the fields of family practice, general internal medicine, general pediatrics, or obstetrics and gynecology.” If the employee does not satisfy this part of the statute, notice is not required as to that individual and suit does not have to be filed in the federal court. It is more likely, however, that the individual health care provider at the health center will be deemed a federal employee. If so, the government will file a “certification of scope of employment” in which the government concedes that the individual was acting within the scope of federal employment on the dates and times in question. With the filing of this certification, the lawsuit should name only the United States of America as the defendant, not the health care center and not the individual employee.

Have We Missed the Boat?

There may be a situation in which a lawsuit against a health center not known to be a qualified health center, and/or an employee of that health center, is filed in state court since the claimant believes that the federal government is in no way involved in the business of the healthcare providers. Subsequently, and after the two-year statute of limitations as to the notice provision, it is discovered, for the first time, that, in fact, the defendants do qualify under the federal statutes. What is the claimant to do under these circumstances?

Let's look at the U.S. Court of Appeals for the First Circuit, which has held that a claim accrues under the FTCA “when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the factual basis for the cause of action.” Furthermore, “[t]he test for whether a plaintiff should have discovered necessary facts is an objective one.”

Thus, a determination as to when a cause of action accrues under this “discovery rule” involves a two-step inquiry. Patterson v. United States , 372 F. Supp. 2d 195, 200 (D. Mass 2005). First, the court must determine “whether sufficient facts were available to provoke a reasonable person in the plaintiff's circumstances to inquire or investigate further” with respect to the factual basis for the cause of action. Once this duty to investigate is established, the plaintiff is deemed to have knowledge of what she would have discovered through a reasonably diligent investigation.

Second, the court must determine “whether the plaintiff, if armed with the results of that investigation, would know enough to permit a reasonable person to believe that she had been injured and that there is a causal connection between the government and her injury.” (Emphasis added.) If a reasonable person would not believe that she had been injured and that there was a causal connection between the government and her injury, the plaintiff's claim has not accrued under the FTCA.

Obviously, these are fact-sensitive issues, and each case will be decided on its own merits. Therefore, it is even more important for the practitioner to be vigilant in its investigation in order to determine the status of the health care provider.

Conclusion

The practitioner must be meticulous in processing any claim under the FTCA. Those involving medical malpractice with the added issue of identifying the health care provider as a federal employee can be tricky. It is imperative that the attorney determine the eligibility of the health care provider, and then carefully prepare and file the processing documents to comply with the applicable rules. From that point on, the process is substantially the same as a state court case.