Day on Torts
There is a new case on how one establishes the deadline for filing medical malpractice claims against the military hospitals and other health care providers associated with the federal government under the Federal Tort Claims Act (FTCA). The case applies to FTCA claims arising in Tennessee, Kentucky, Ohio, and Michigan.
Federal law is different that state law. The general rule in Tennessee is that a person or entity that is going to be sued for medical malpractice (now called health care liability) must be given written notice in the manner prescribed by law within one year of the date of the negligent act or omission causing an injury. This is, I repeat, the general rule: at actual rule is more complicated.
The Tennessee rule does not apply in actions against the hospitals and other health care providers of the federal government under the FTCA. In such cases, notice must be given within two years after the claim accrues. Once again, the actual rule gets more complicated, but "two years" is the basis rule.
A new decision from the United States Court of Appeals for the Sixth Circuit flushes out the rule in more detail and helps us understand exactly when the two year period begins to run. Jerry Ambergey died while receiving medical treatment at a health care facility operated by the federal government. His wife Delma was promptly advised of his death. The day before the two year anniversary of Jerry’s death Delma mailed a claim form to the government. The government received the claim form four days later. The government claimed that Delma missed the deadline – that the two year period to give notice began on the date of Jerry’s death and that its failure to receive the claim form within two years barred Delma’s claim. Delma argued that the two year period did not begin to run until several months later, after she received the autopsy report indicating that the cause of death was an allergic reaction to the intravenous contrast dye. Thus, Delma argued, by giving notice when she did she actually gave notice several months earlier than the deadline.
The appellate court noted as follows:
The government is thus left with only two facts that arguably support its position: (1) the EMS personnel provided Bolling, the coroner, with information that Bolling determined was in conflict with what the Amburgey family reportedly heard from Dr. Alam; and (2) because of that conflict, Bolling ordered that an autopsy be performed. Comparing these facts to those in cases that were deemed sufficient to trigger the accrual of tort claims, however, leads us to conclude that Delma’s wrongful-death claim did not accrue on the date of Jerry’s death.
The court said that
that “[p]atients may reasonably rely on assurances by physicians” with respect to injuries and their causes. [citation omitted] This principle is applicable in the present case, where Dr. Alam told Delma that Jerry had died of natural causes. Nothing preceding the coroner’s autopsy report contradicted Dr. Alam’s assertion that the cause of death was natural. To be sure, the EMS personnel indicated to Bolling that they had been able to intubate Jerry, a fact that Bolling determined was in conflict with Dr. Alam’s explanation that Jerry had aspirated a blood clot. But neither Bolling nor anyone else indicated to Delma that they had any suspicion that Jerry’s death was related to the medical treatment he had received.
Thus, the court held that the notice given by Delma was timely and the case could proceed on the merits.
The opinion turns on the facts of this case, and thus one should endeavor to give appropriate notice to the appropriate federal agency within two years of the event causing an injury or death. Given notice later risks a later determination that notice was given too late or, at best, can mean a multiple year delay in moving forward with the case because of a fight over whether the claim was filed on time.
The case is Ambergey v. United States of America, No. 12-6279 (6th Cir. Oct. 24, 2013).