Vol. 14, No. 4, Pg. 32. Medical malpractice litigation and federally funded health centers: A primer on the federally supported health centers assistance act.

AuthorBy Joseph P. Griffith Jr.

South Carolina Lawyer


Vol. 14, No. 4, Pg. 32.

Medical malpractice litigation and federally funded health centers: A primer on the federally supported health centers assistance act

32Medical malpractice litigation and federally funded health centers: A primer on the federally supported health centers assistance actBy Joseph P. Griffith Jr.33The Hypothetical: The parents of a teenager show up at your office complaining of injuries to their child caused by questionable medical treatment provided by her health care providers. Limited income had forced the family to seek treatment at the local community health center. Twenty months earlier the child's physician apparently gave her a drug which caused an allergic reaction resulting in severe muscular and neurological injuries. The parents claim that they disclosed the child's drug allergy to the physician prior to the incident. You take about six months to obtain the medical records and to retain experts in support of your case. You then file a complaint in the court of common pleas asserting negligence and naming the treating physician and community health center as defendants. You are optimistic that the defendants will admit liability, challenge damages and settle after jury selection.

The Result: The case is removed to federal court, and you are faced with a motion to have the U.S. government substituted as the sole defendant as well as a motion to dismiss the suit for lack of subject matter jurisdiction due to a failure to meet the two-year statute of limitations and comply with the administrative exhaustion requirements of the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2401, 2671-2680. Stunned and disheartened, you notify your insurance carrier of a potential legal malpractice claim. You have now entered the arcane medical malpractice world created by P.L. 102501, the Federally Supported Health Centers Assistance Act of 1992, as amended (the Act).

Variations of the above hypothetical have in fact occurred. Such was the case in Kelley v. Total Health Care, Inc., . 2000 WL 151280 (D.Md.). Kelley originally filed a medical malpractice suit in Maryland state court alleging the defendant failed to diagnose and properly treat a salmonella infection which resulted in her daughter's death. After removal and substitution, the district court held in dismissing the suit, that "as harsh as it may seem, . . . a plaintiff's ignorance of a person's status as a federal employee does not excuse plaintiff's failure to file a timely administrative claim" as required under the FTCA. Id. The Fourth Circuit Court of Appeals affirmed the decision. Kelley v. Total Health Care, Inc., 2001 WL 52675 (4th Cir. (Md.)).

While not exhaustive, this article seeks to expose the South Carolina trial bar to the fundamental components and some nuances of the Act. The trial bar should take note that, because the Act was enacted relatively recently and is fairly obscure, there is not a large body of case law interpreting it, and many issues involving the Act remain to be resolved.

General purpose of the Act

The general purpose of the Act was "to provide that doctors or other health care providers at a federally funded migrant health center, community health center, or health center providing services to homeless individuals, would be deemed to be employees of the Public Health Service for civil liability purposes, and thus would be covered by the Federal Tort Claims Act (FTCA)." H.R.Rep.No. 102- 823(1), 102nd Cong., 2nd Sess. (1992). Congress sought to "eliminate the need for these health centers to purchase medical malpractice insurance, the costs of which [had] been found to far exceed the amount of claims paid by the centers, and thus free up more resources to provide additional health care services." Id. Congress further sought to "strengthen the responsibility of grantees to check staff credentials, by conditioning grants to applicants on their certification that they have reviewed and verified the professional credentials, references, claims history, fitness, professional review organization findings, and license status of their physicians and other licensed health care practitioners." Id. In short, Congress hoped to improve the quantity and quality of health care provided to our financially less fortunate citizens.

Specific provisions of the Act

Specifically, the Act amended 42 U.S.C. § 233 to provide that a suit against the United States is the exclusive civil remedy for negligent acts or omissions of certain federally supported health care entities and their officers, governing board members, employees and contractors in performing activities related to medical, surgical and dental care or related functions. The covered entities and individuals are considered employees of the federal government's Public Health Service (PHS), and, as such, are provided tort immunity from malpractice claims of negligence "while acting within the scope of [their] office or employment."§ 233(a). While those covered are immune from suit for their medical negligence, the United States assumes liability for the same, but only to the extent set forth in the provisions of the Act and the FTCA.

34 Becoming covered by the Act - the deeming process

Entities desiring to be covered by § 233 must be determined by the Secretary of the U.S. Department of Health and Human Services (HHS) to be deemed an employee of the PHS. Such entities must submit an application to the HHS requesting to be deemed. § 233(g)(1)(D). HHS is required to make its deeming determination within 30 days of receiving an application for the same. § 233(g)(1)(E). The determination usually takes the form of a deeming letter to the entity from HHS's Bureau of Primary Health Care (BPHC) indicating the effective date and terms of coverage consistent with the provisions of § 233 and the FICA.


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