Caveat Veterans: Limitations and Repose in Medical Malpractice Actions under FTCA

By Alex Stein

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).

Augutis v. United States — F.3d —-, 2013 WL 5553084 (7th Cir. 2013), features a medical patient that did exactly this. Alas, when he sued the government for medical malpractice, allegedly committed by his doctors at the Veterans Affairs Hospital in Illinois, it was too late. His suit was blocked by the Illinois statute of repose (735 ILCS 5/13–212(a)) that nullifies an aggrieved patient’s right to sue his doctor within four years of the date of the alleged malpractice. The patient argued that this statute was preempted by the abovementioned provisions of FTCA, but the Seventh Circuit disagreed.  Here is why:

Unlike statutes of limitations that bar suit as a matter of procedure, statutes of repose are substantive in nature. As the Court explained, a repose statute “extinguishes any right to bring any type of cause of action against a party, regardless of whether such action has accrued.” Under FTCA, “The United States shall be liable … in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The jurisdictional grant to hold the government liable for tort damages thus “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).

The patient also argued that the administrative claim he filed with the Veterans Affairs Department was a timely action against the government, but the Court again disagreed. The Court explained that a person can avoid the statute of repose only when she files her suit in a court and not with a federal agency.

The complex relationship between FTCA and state medical malpractice laws sets several traps for the unwary. For another recent example of a patient who fell into one of those traps, see Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013). Hopefully, an article I am presently working on will untangle this complexity.

Be Sociable, Share!