The Statute of Limitations as Applied to Medical Malpractice Actions Brought Under the Federal Tort Claims Act

Authorby Lieutenant Colonel Carl T. Grasso
Pages01
  1. IMPORTANCE TO MEMBERS OF THE MILITARY

    Suits under the Federal Tort Claims Act IFTCA) are, of course. brought against the United States Government. Service members may not sue under the FTCA for "servieeconneeted' injuries. including those resulting from medical malpractice, because of the doctrine announced in Feres v United States.' Why then should statutes of limitations in medical malpractice actions under the FTCA be of interest to service members?

    There are several reasons why this area of the law should be of special interest to all members of the military. First. a service member's spouse and children are entitled to free medical care at government facilities, and the Feres doctrine in no way bars suit an their behalf. The federal case reporters are filled with suits alleging medical malpractice committed upon service members' dependents in the course of receiving this free cam2 The statute

    *Judge Advocate Generals Corps. United Stales .Army Reserve Attorney Associate. Herzfeld & Rubm. P.C. New York. New York Currently assigned BQ Legdative and Legal Ofhcer. 363d Civil Affairs Command ILSARI. Broru Ner York Formerly assimed BP Amsfant Staff Judge Advocate. 301at Support Group ILSARl Fort Totten, New York. 1985: Assistant Sraff Judge Advocate, 8th Memcal Brigade ILSARI. Fort Hamilton. New Yark. 1983 to 198% Commander. 305th Englneer Detachment [Red Estate1 !USARl 1980 to 1983 various staff positions. 411th Enweer Brigade IUSARI. Braahlyn. New York, 1974 to 1980. B S. Polytechnic Institute of Brooklyn, 1969 J.D. (cum laudel. New Yark LawSchool, 1979. Graduate, Command and General Staff College 1991, Judge Advocsce Officer Advanced Course, 1986, Judge Advocate Officer Basic Course 1984 Member of the bars of the State of New York and the United States District Contra for the Eantern and rhe Southern Di~iricis of Neu Yark. This art& nab originally aubrmffed in satld~~fmnof the ~nLmgrequirement of the JudgeAdvocate Officer Advanced Course

    '340 US. 135 119601.'Of the smty.seuen FTCA medical malprscciee cases diievased m ihx arrlcle, Iwent).-four 13651 ware brought OD behalf of dependenrs treated at millfary ~erwce medical lacillties Thlrly-six 164% rere brought by ex.servlee members treated et VA or PHS fachilei. or rel~rees treated at active rmlftary fachties The remalrvng seven cases i l O I l were brought by seamen entitled to PHS care lnmvlduals treated by medical personnel employed by the government. 01 federal priaaneri

    hIILITARY LAW REVIEW [ad 117

    of limitations is especially important to a service member's minor dependents because, unlike the vast majority of civil jurisdictions. the FTCA recognizes no tolling of the statute of limitations until a claimant has come of age.3 This can land has) resulted in rather harsh consequences against small children in the medical malprac. tice area, e.g.. Aiuaya Y. Untted States.* Frinonder Y. United States3 or Cnmire v. United States6 In each of these cases. the courts held that claims of minor children were tme-barred, natwithstanding the child's minority. Clearly. the statute of limitations concern is far from academic.

    Second, service members do not reman on active duty forever. In United States v. Br0ii.n.' the Supreme Court specifically sanctioned a medical malpractice Suit brought by an honorably discharged serviceman who WBS treated in a Veterans Administra. tion hospital for a serviceconnected injury. The Court held that the Feres doctrine did not apply, but rather that the rationale of an earlier case, Brooks v. Uncted States.8 controlled.

    The injury [malpractice] far which suit was brought [in Braun] was not incurred while respondent was an active duty or subject to military discipline. The injury occurred after his discharge. while he enjoyed a civilian status , ,

    unlike the claims in the Feras case, this one is not foreign to the braad pattern of liability which the United States undertook by the Tort Claims Act . . . .g

    Many cases have been brought by veterans who received treatment at VA facilities, for serviceconnected problems as well as problems arising after them military service ended. Also. the language in Brown is broad enough to encompass military retirees receiving treatment lin "civilian status") at active military facilities.

    Finally, although the Feres doctrine is in force today, it may not always remain so. The Supreme Court in Feres made it clear that it was interpreting the FTCA largely in a vacuum, without

    '26 uS.c 9 24011bj 119821 see Jaofremiki Y. Knifed Stater. 737 F.2d 666. 669

    17th Cir 19641 ('the psrentr or gvardisn of B minor musf bring rhe minor'! durn m B timely fashion beesure the chddr minorrfy does not foil the mnning of the federal ton elslms ~tetut~ai hmitationr Leanhard u Lnited Stater, 633 F 2d 599. 624 12d Cn 19801, cert den 451 US 908. 101 S Ct 1975 68 L Ed 2d 296 119811 I

    766 F 2d 1416 (10th Cir 19651.on remand 489 F. Supp. 996 i\ D \ Y l9eO8

    19811 STATUTE OF LIMITATIONS

    clear indications of Congressional intent:

    There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute was designed to have onthe problem before us, or that it was even in mind. Under these circumstances, no conclusion em be above chal. lenge, but if we misinterpret the Act, at least Congress possesses a ready remedy.10

    In the years since Ferrs was decided. Congress has been silent in terms of legislation affecting the Supreme Court's decision, but this could well change in the near future. In July 1986 the House of Representatives had before it a bill to legislatively overrule Feies in medical malpractice cases, and the House Judiciary Subcommittee on Administrative Law took testimony in public hearings on the question. AU of the public !as opposed to governmental) witnesses at hearings conducted on 8 and 9 July 1985 spoke in favor of the bill." In fact, there is a citizens group, "Civilians Against Military Injustice" ICAMII, made up of service persons, ex.serviee persons, and spouses. whose main purpose is to lobby for passage of the bilk most of the testimony before the committee was from members of CAMI. The biU, renumbered H.R. 3174,'* was approved by voice vote by the House Judiciary

    l*Prrrr ld" I- e, ill

    .

    . . .

    , -. . .

    . . .

    'Hsarmgs on H R 1161 before the House Comrmttee on the Judiciary 99th Cong. 1st Sese 119851

    "H R. 3174, 99th Cons , 1st Sess 119861 It would hsie sdded 8 ne- aeefion 5 2681. to Tilie 28, Chapter Ill-Tort C l m s Procedure The text RBI BQ folious

    5 2681 Certiun eiiums by members of the Armed Forces

    IaI CLAIMS OF MEMBERS OF ARMED FORCES.-Subiecr to all the pmvimns of ths chapter cl-o ma) be brought under thie chapter for damages agiunet the United Scares for personal miur? or dearh of B member of the Armed Forces ierving on active duty or onfull-time Sstmnal Guard duty la. defined in aecc~on 1011421 of ntle 101, under the conditions prercnbed m thu sectmn

    Ibl WHERE CARE PERFORMED -The personal m~uw

    01 dsach

    referred to in subieetm iaj must have armen out of medlcal a dental care furniahed the member of Lhe Armed Forces ID B fired medical treatment facility operated by the Secretary of B military department or my orher fusd medical faciiiry operated by the United States.

    IC! DEFISITIOK.-For purpoiei of thra sect~on, a fued medical lacit) LQ B m e d d center. hospital. or clinic that 13 located m B building. ~tnxfure,

    01 other improvement to real properry

    id1 REDUCTIOS OF CLAIMS BY OTHER BENEFITS.-The paymenc a1 my c 1 m of B member of the Armed Forces under this seetian shall be reduced by the present value of ather benefits received by the member and the member's estate, i ~ r w v ~ r i and

    bmrhciaries, under M e

    lo. title 37 OT title 38 that are attnbulabie

    Lo the phyaicd mjun or death from Khxh the clum arose

    C~mmittee.'~and passed the House of Representatives on October

    7, 1986. While the bill failed to pass the Senate, the level of interest indicates that Feres may be legislatively overruled. allowing service members on active duty at the time of medical treatment to sue the United States under the FTCA.'*

    11. THE BASIC DOCTRINE AND UNITED STATES K KUBRICK

    In ordinary tort cases alleging negligence. the statute of limitations begins to run at the time of the injury, which usually occurs simultaneously with the negligent act. The Federal Tort Claims Act clearly contemplated something of this nature:

    A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency pithin tm years after such clam (ICCIIIOS

    or unless action is begun within six months after the date of the mailing, by certified or registered mail. of notice of final denial of the claim by the agency to which it was presented.16

    The emphasized phrase, "within two years after such claim accrues" has been the subject of much litigation.

    Classical analysis of when a claim "BCCIU~S" treated medical malpractice actions like other run.of.the.mil1 torts: a claim "BC.

    crued" when the culpable conduct caused an "injury." Early on. the unfairness of this doctrine in medical malpractice actions became apparent: often the "injury," although caused immediately by the practitioner's negligence, was not known by the plaintiff, or. for that matter, by the practitioner. Also, the "injury" was frequently not m abrupt thing, but rather developed over a considerable period of time after the negligent acts.

    Une v Thompson16 adopted the "discovery" doctrine in B

    Federal Employers' Liability Act IFELA) case brought by a worker who developed silicosis after inhaling silica dust for years The Supreme Court found that if plaintiff were time barred, "[ilt would mean that at some past moment in time, unknown and inherently unknowable even in retrospect. Urie was charged with

    H R Rep 60 99 289. 99th Cong, 1st Sess 119651'Bills to partially overturn Fwor were reintroduced m bath the Senate and the House of...

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