Case Law Update: Who Does Your Doctor Work For?
A recent federal court decision re-emphasizes a potentially fatal trap for plaintiffs who receive treatment from clinics and other facilities. In Sanchez v US, District Court Judge Nathanial Gorton dismissed a case brought by the husband who died of a postpartum hemorrhage, holding that the two-year notice requirement applied even though he was unaware that the defendants were federal employees.
Angel Sanchez brought a case against two doctors, alleging that their negligence resulted in the death of his wife from a postpartum hemorrhage. Unknown to Mr. Sanchez or his lawyer, the two defendant doctors worked at the Lynn Community Health Center. This health center is one of a number of “deemed” health centers in the Boston area that are federally funded, and whose employees are granted immunity from personal liability by the Federal Tort Claims Act.
It took more than a year for the autopsy report to be available, and nearly three years for the plaintiff to get complete, legible copies of his wife’s medical records. By the time suit was filed, just before normal three-year statute of limitations, the two-year period for giving notice of a claim against a federal government had long passed.
And so imagine the plaintiff’s surprise and horror when the United States government stepped in, claimed responsibility for the individual defendants, removed the case to federal court—and promptly moved to dismiss the case for failure to give notice as required by the Federal Tort Claims Act.
While acknowledging the harsh result for the plaintiff, Judge Gorton nevertheless felt constrained to dismiss the case. He noted that the notice period would be tolled only if the plaintiff proved that he had made a reasonably inquiry into the doctors’ status, or that their status had been deliberately concealed from him. The case law in Massachusetts is no better, the Appeals Court having held more than twenty years ago in Krasnow v. Allen, 29 Mass. App Ct. 562 (1990), that the “discovery rule,” which tolls the statute of limitations until the plaintiff is on notice of his claim, does not require that the plaintiff have notice that the potential defendant is a public employee. The facts in Krasnow were even more extreme than in Sanchez: in Krasnow, the doctor was in private practice at a private hospital.
The sad result in both state and federal court: even if the plaintiff has no clue—and no reason to have a clue—that the potential defendant is an employee of the government, the notice period is not extended.
We have tried to avoid this trap in several ways. First, we keep an internal list of facilities that we know from experience have some affiliation with the state, a town or city, or the federal government. Second, as we are evaluating a case, we check the facility’s website to see if there is any hint of an affiliation with a government defendant and search the list of current “deemed” health centers. And finally, we include in our interrogatories to each defendant a question asking whether he is claiming to be immune from personal liability as a municipal, state or federal employee.
The new notice statute may both help and hinder efforts to unearth information about a potential defendant’s affiliation. On one hand, the notice requirement consumes six months of time, which may permit the two-year period to elapse before the plaintiff has an opportunity to do any discovery on the defendant’s employment status. On the other hand, an insurer’s failure to respond to a claim letter by denying liability on the basis of its insured’s immunity will, at a minimum, create a sympathetic argument for estoppel or concealment.