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Cogan’s Corner – Medical Malpractice and the FTCA: the statute of repose trap

Originally published in the January 29, 2014 edition of the Chicago Daily Law Bulletin.

This article explains a trap given about how the state statutes of repose on medical malpractice cases can serve as a bar to Federal Tort Claims Act claims on behalf of an unwitting plaintiff who has followed the steps given by the statute.

Medical malpractice and the FTCA: the statute of repose trap

Consider this a heads up. With courts arounds the nation divided, the 7th U.S. Circuit Court of Appeals has sprung the trap; state statutes of repose on medical-malpractice cases can serve as a bar to Federal Tort Claims Act (FT-CA) claims on behalf of an unwitting plaintiff who has followed the procedural steps dictated by the statute.

Let me give you a bit of background, as I am no stranger to this scenario.

The United States has waived its sovereign immunity in cases falling within the provisions of the FTCA that provides for jurisdiction in the district courts over “civil actions on claims against the United States … for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under 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.” 28 U.S.C. Section 1346(b)(1).

This section provides the exclusive remedy for persons suffering injuries as a result of the negligence of a federal employee acting within the scope of his employment. 28 U.S.C. Section 2679(b)(1).

Under the FTCA, a potential claimant must exhaust his or her administrative remedies by presenting the claim to the appropriate federal agency within two years of accrual. 28 U.S.C. Section 2401(b).

Generally, a lawsuit may not be filed in federal court until the agency denies the claim in writing. 28 U.S.C. Section 2675(a).

Once the denial letter is sent, a claimant must commence a lawsuit within six months. 28 U.S.C. Section 2401(b).

However, a claimant does not have to wait for a final denial letter; at his or her option, after six months he or she can deem the claimed denied. 28 U.S.C. Section 2675(a).

Notwithstanding this provision, administrative agencies regularly take years to issue their rulings, seek frequent extensions and string diligent claimants along to the detriment of the rights granted by this very statute.

The FTCA’s primary purpose is to permit individuals with meritorious claims to seek redress from the government while alleviating Congress’ burden to investigate and determine private claims seeking individual relief.

In this context, the FTCA exhaustion requirement meets two goals: 1) easing court congestion and avoiding unnecessary litigation while simultaneously allowing federal government to expedite the fair settlement of tort claims and 2) providing fair and equitable treatment of private citizens when dealing with the government, or in litigation against the government.

In the recent case of Cooper v. United States, Civil Action No. 12-7244 (E.D. Pa. Dec. 30, 2013) the court held that invoking a statute of repose to bar an FTCA lawsuit would significantly impede these laudable goals.

The district court reviewed the administrative time constraints and noted that the express open-ended nature of Section 2675(a) allowing the claimant to deem the claim denied if not completed within six months advances the goal of avoiding unnecessary litigation and promotes settlement of the meritorious claims at the agency level, Id.

On the other hand, enforcing a state statute of repose while the parties are negotiating hobbles the statute’s administrative review provisions by artificially truncating the process. Id. “Congress did not intend for the states to have such significant control over administrative review of federal claims,” Id.

Unfortunately the 7th Circuit did not see it this way in Augutis v. United States, 732 F2d 749 (7th Cir. 2013).

The court held that for four-year statute of repose on medical-malpractice claims under Illinois law was a substantive limit on the liability of the government under the FTCA.

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Medical Malpractice and the FTCA from CoganandPower

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If you have been injured in a personal injury or medical malpractice accident, do not hesitate to contact the Chicago accident and injury law firm of Cogan & Power at (312) 477-2500 to schedule a free case consultation, so that we can help you begin the process of recovery as soon as possible. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.