In 2014 alone, more than 1,300 federally funded health centers employed more than 11,200 physicians and more than 9,000 medical staff workers who treated approximately 23 million patients. Today, one in every fourteen people living in the United States relies on a federally funded health center for primary medical care. Further, the United States Department of Health & Human Services, Health Resources and Services Administration recently announced that the availability of $270 million through Affordable Care Act funding will be used to establish approximately 400 new federally funded health centers across the country.1 In short, more and more people in the United States are receiving, and will continue to receive, health care from federally funded health care centers every day. But how does that affect Illinois lawyers?
Some lawyers may be surprised to discover that the two-year statute of limitations provided by the Federal Tort Claims Act ("FTCA" or the "Act") applies to medical malpractice claims made against federally funded health centers and the medical staffs those facilities employ.2 The Act provides that if such a claim is not made in a procedurally proper manner within two years after the medical malpractice claim accrues, the right to recover will be forever lost. Lacking this knowledge can be especially troublesome for a plaintiff’s attorney who, in misplaced reliance on the Illinois statute of limitations for medical malpractice claims, fails to take action to prosecute a minor plaintiff’s medical malpractice within the FTCA-mandated two years.
Under the Illinois statute, a minor plaintiff may timely file a medical malpractice lawsuit within eight years after accrual of the cause of action or by the minor plaintiff’s twenty-second birthday, whichever length of time is shorter.3 However, if a minor plaintiff seeks to pursue a medical malpractice claim against a federally funded health center and/or its staff, the FTCA provides the minor plaintiff’s exclusive remedy and sets forth a unique set of requirements, including, in most cases, a significantly shorter limitations period.4
Under the FTCA, all such claims must first be filed with the appropriate federal administrative agency within two years of accrual, regardless of the minor plaintiff’s age.5 The FTCA claimant must then exhaust all administrative remedies before filing suit under the FTCA in a federal district court.6 Failure to bring the prerequisite administrative claim within two years of accrual will be fatal to the lawsuit. As such, the first step for a prudent Illinois lawyer preparing to file a medical malpractice case is to determine whether a target defendant hospital, health center, or medical professional is federally funded.
Ignorance of a healthcare facility’s federal-funding status will not prevent an FTCA claim from accruing and will not toll the FTCA’s two-year limitation period, even in medical malpractice cases brought by a minor plaintiff.7 As long as a federally funded facility does not mislead the plaintiff or actively conceal its receipt of federal funding, a plaintiff of any age is charged with the burden to discover whether a healthcare provider has federal status.8 While they cannot conceal federal funding status, neither a federally funded health center nor a government employee has any obligation to notify a prospective plaintiff that, as a recipient of federal funding, it can only be sued for torts under the FTCA and not under state law.
The FTCA provides the exclusive remedy for medical malpractice committed by a federally funded health center and its officers, directors, employees, and certain contractors.9 The Act defines certain healthcare entities and individual providers as employees of the United States Public Health Service subject to the Act’s limitations.10 A healthcare entity qualifies as an employee under the Act if it is "a public or non-profit private entity receiving Federal funds under section 254b [42 USCS § 254b]."11 "Any officer, governing board member, or employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner" also qualify as federal employees.12
Conveniently, the website of the United States Department of Health and Human Services provides a search function that can help to identify the health centers that, as a result of their federal funding, may be sued for malpractice only under the FTCA.13 The website’s search function allows a practitioner to search by a particular entity’s name, the state in which an entity is located, or by various identification numbers an entity may have been assigned, including a federal grant number, FTCA number, or BCMIS number. However, the website contains a disclaimer stating that the search results are not a comprehensive list of all health center sites and that search results are limited to the current year only. Therefore, the prudent attorney should take additional steps to confirm whether a healthcare facility is federally funded and therefore subject to liability in tort exclusively under the FTCA. Such additional steps may include viewing the potential-defendant facility’s website and/or contacting the facility itself.
As a prerequisite for filing an FTCA suit in federal court, a plaintiff must first pursue all available administrative remedies by presenting a claim to the Health and Human Services Office of the General Counsel, General Law Division, Claims and Employment Law Branch.14 Most FTCA claimants utilize the Standard Form 95 to present their claims to the appropriate administrative agency.15 Although use of the Standard Form 95 is not required, its use will help ensure that a plaintiff’s claim has incorporated all necessary information, including an exact amount of money damages and sufficient facts to allow the administrative agency to investigate the merits of the claim. Under the FTCA, if the claim is denied or a settlement is not reached within six months of the claim’s filing, the claimant may sue the United States in the appropriate federal district court as long as the suit is filed within six months of the agency’s decision. Alternatively, a claimant may request reconsideration of the agency’s denial within the same six-month time period after the decision.
While a plaintiff may file an FTCA claim in federal district court only after all administrative remedies have been exhausted,16 lawyers should note that if the administrative agency fails to rule on the plaintiff’s administrative claim within six months, the plaintiff is entitled to either (1) await the agency’s decision, or (2) treat the administrative claim as denied and administrative remedies properly exhausted for purposes of filing a lawsuit in the appropriate district court.17 Although the plaintiff may file suit if the administrative agency fails to render a decision within six months, the six-month limitation period for filing suit in the district court is not triggered until the agency has made a ruling on the administrative claim. Thus, a plaintiff—whether minor or not—is usually not harmed by waiting for an agency decision. However, practitioners should be cautious. Although the Illinois statute of limitations will not apply in the situations discussed in this Article, there is some authority for the proposition that the Illinois four-year statute of repose found in 735 ILCS 5/13-212(a) could be applied to bar a lawsuit filed in an otherwise timely and procedurally proper manner under the provisions of the FTCA.18
1 U.S. Dep't of Health & Human Services, Health Resources and Services Administration, http://bphc.hrsa.gov/about/healthcenterfactsheet.pdf (last visited August 19, 2015).
2 42 U.S.C. § 233(a), (g)(1)(A).
3 735 ILCS 5/13-212(b).
4 See 42 U.S.C. § 233(a) (providing that the FTCA provides the sole remedy for claims of the sort described herein).
5 Arteaga v. United States, 711 F.3d 828, 830 (7th Cir. Ill. 2013) ("The extension of the [735 ILCS 5/13-212(b)] statute of limitations for a suit on behalf of a child victim doesn't apply to claims governed by the [FTCA], which lacks a comparable provision."). See 28 U.S.C.S. § 1346(b) (providing that the federal district courts have original jurisdiction over claims made under the FTCA); 28 U.S.C.S. § 2671 et seq.
6 28 U.S.C. § 2401(b); 28 U.S.C. § 2675(a).
7 See Arteaga, 711 F.3d at 833–34 (holding that the limitation period for an FTCA medical malpractice claim is not tolled until discovery of federal status unless plaintiff’s lawyer is diligent and the facility conceals federal status). For additional cases holding that an FTCA medical malpractice claim accrues without regard to a discovery of federal status, see also Hensley v. United States, 531 F.3d 1052, 1056–57 (9th Cir. 2008); Skwira v. United States, 344 F.3d 64, 76–77 (1st Cir. 2003); and Gould v. United States Department of Health & Human Services, 905 F.2d 738, 743-45 (4th Cir. 1990).
8 See United States v. Kubrick, 444 U.S. 111, 120 (1979) (omitting the legal identity of the putative defendant as one of the critical facts a plaintiff must possess before an FTCA claim accrues); Arteaga, 711 F.3d at 834-835 (stating, "It's not asking too much of the medical malpractice bar to be aware of the existence of federally-funded health centers that can be sued for malpractice only under the Federal Tort Claims Act—there are at least three such centers in Chicago besides Erie—and if a member of that bar is not aware and misleads a client, as lawyer number two did in this case by advising the plaintiff that the applicable statute of limitations was eight years, the lawyer may be liable for legal malpractice but the government can still invoke the statute of limitations.); see also Hensley, 531 F.3d at 1056; Jones v. United States, 294 Fed. Appx. 476, 480 (11th Cir. 2008); Norman v. United States, 467 F.3d 773, 776, 373 U.S. App. D.C. 312 (D.C. Cir. 2006); Skwira, 344 F.3d at 77; Garza v. U.S. Bureau of Prisons, 284 F.3d 930, 935 (8th Cir. 2002); Gould., 905 F.2d at 745; but see, Santos ex rel. Beato v. United States, 559 F.3d 189 (3d Cir. 2009) (holding that FTCA limitation period was equitably tolling because mother of child allegedly injured by medical malpractice was diligent and hospital’s federal status was unavailable publicly).
9 42 U.S.C. § 233(a).
10 42 U.S.C. § 233(g).
11 42 U.S.C. § 233(g)(4).
12 42 U.S.C. § 233(g)(1)(A).
13 U.S. Dep't of Health & Human Services, Health Resources and Services Administration, "Search Deemed Health Centers," http://bphc.hrsa.gov/ftca/healthcenters/ftcahcdeemedentitysearch.html (last visited June 30, 2015).
14 28 U.S.C. § 2675(a) (setting forth the prerequisite of filing an administrative claim).
15 Standard Form 95 can be found at the following web address: http://www.justice.gov/sites/default/files/civil/legacy/2011/11/01/SF-95.pdf (last visited July 7, 2015).
16 28 U.S.C. § 2675(a); see Arteaga, 711 F.3d at 831.
17 See 28 U.S.C. §§ 2679(d)(2), (5).
18 Augutis v. United States, 732 F.3d 749, 752 (7th Cir. Ill. 2013) cert. denied, 135 S. Ct. 53, 190 L. Ed. 2d 229 (2014) (affirming dismissal of a non-minor plaintiff’s medical malpractice claim against a federally-funded health care facility where the claim was properly made under the FTCA, but suit was not brought within four years after the cause of action accrued). The Augutis decision does not address whether the four-year statute of repose could apply to a minor’s cause of action.