Federal Appellate Court Affirms Dismissal Of Birth Injury FTCA Claim As Untimely Involving “Deemed” Federal Employee

The United States Court of Appeals for the Third Circuit (“Federal Appellate Court”) held in its precedential opinion filed on June 22, 2020: “D.J.S.-W., a young girl who sustained a [brachial plexus] shoulder injury during birth, argues that the limitations period for filing her medical malpractice claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–80, should be equitably tolled. Because D.J.S.-W. fails to show both that she diligently pursued her rights and that extraordinary circumstances prevented her from timely filing, we decline to accord her such an exceptional remedy. Accordingly, we will affirm the District Court’s grant of summary judgment to the United States.”

D.J.S.-W.’s medical malpractice lawyer believed that the delivering doctor was privately employed because he delivered D.J.S.-W. at Sharon Hospital—an entity against which the lawyer had previously litigated and knew to be private—and was listed on the Sharon Hospital website. Despite his investigatory efforts in preparing to file her case, D.J.S.-W.’s medical malpractice lawyer did not discover that at the time of D.J.S.-W.’s birth, the delivering doctor was employed by Primary Health Network, a “deemed” federal entity eligible for FTCA malpractice coverage.

Under federal law, entities that receive federal funding to serve medically underserved populations, as well as “health practitioners that such entities employ[,] ‘shall be deemed to be [employees] of the Public Health Service.’” An action against the United States under the FTCA is the exclusive remedy for persons alleging personal injury resulting from the performance of medical functions by Public Health Service employees acting within the scope of their employment. Records from before D.J.S.-W.’s birth show that at the time of her birth, her mother had been a patient of the delivering doctor for over ten years and had visited the Primary Health Network office in Sharon, Pennsylvania.

In late 2016—nearly seven years after the allegedly negligent delivery—D.J.S.-W.’s mother filed suit on D.J.S.-W.’s behalf against the delivering doctor and Sharon Hospital in Pennsylvania state court. Despite Pennsylvania’s two-year limitation for bringing personal injury actions (42 Pa. Cons. Stat. § 5524(2)), D.J.S.-W.’s medical malpractice lawyer deliberately delayed filing D.J.S.-W.’s case in anticipation of acquiring additional knowledge regarding the severity and permanency of her injuries, relying on a Pennsylvania statute, 42 Pa. Cons. Stat. § 5533(b)(1), which tolls a minor plaintiff’s action until she turns eighteen.

The Federal Appellate Court stated “although D.J.S.-W.’s counsel deliberately delayed filing her case in reliance on Pennsylvania’s tolling statute, that law cannot save D.J.S.-W.’s untimely claim against the United States because state-law tolling statutes do not apply to the FTCA’s limitations period.” The sole issue on appeal was whether D.J.S.-W. has shown that she is entitled to the extraordinary remedy of equitable tolling of the FTCA’s limitations period.

Equitable-Tolling Test

The Federal Appellate Court stated that a court may rescue a claim otherwise barred as untimely by a statute of limitations when a plaintiff shows she has been prevented from filing in a timely manner due to sufficiently inequitable circumstances. There are three principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting her rights; or (3) where the plaintiff has timely asserted her rights mistakenly in the wrong forum.

D.J.S.-W. argued that she encountered extraordinary circumstances that prevented her from timely filing. Thus, to be entitled to equitable tolling, D.J.S.-W. must show that she in some extraordinary way has been prevented from asserting her rights, and that she exercised due diligence in pursuing and preserving her claim.

The Federal Appellate Court stated that if no extraordinary circumstances stood in the litigant’s way, but she nevertheless failed to timely file, it is likely that she did not diligently investigate and pursue her claim. The extraordinary-circumstances element is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond her control. In sum, for a litigant to be entitled to equitable tolling, she must establish two elements: (1) that she has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in her way and prevented timely filing. The two components are distinct elements, both of which the litigant must satisfy. And to meet the extraordinary-circumstances element, the litigant must show that the circumstances were extraordinary and beyond her control.

In the case it was deciding, the Federal Appellate Court held: “Here, D.J.S.-W. fails to satisfy either prong of this test. She did not diligently pursue her rights because she failed to take reasonable steps to confirm [the delivering doctor’s] employment status. Nor did any circumstances, both extraordinary and outside her control, stand in her way and prevent her “from discovering [the delivering doctor’s] true affiliations” … D.J.S.-W. did not exercise due diligence to meet our equitable-tolling standard. Rather, her effort here—or, more accurately, her counsel’s effort—was, at most, a “garden variety claim of excusable neglect,””

Source D.J.S.-W. v. United States of America, No. 19-2434.

If you or a loved one suffered harm as a result of medical malpractice involving a federal employee or federal entity, you should promptly find a federal medical malpractice lawyer (Federal Tort Claims Act lawyer) who may investigate your federal medical malpractice claim for you and represent you or your loved one in a Federal Tort Claims Act medical malpractice case, if appropriate.

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This entry was posted on Tuesday, August 4th, 2020 at 5:29 am. Both comments and pings are currently closed.


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