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Civil Practice – FTCA Med-Mal Claim Filed Too Late

Raplee v. U.S. (Lawyers Weekly No. 001-165-16, 17 pp.) (Motz, J.) No. 14-1217, Nov. 22, 2016; USDC at Greenbelt, Md. (Grimm, J.) 4th Cir.

Holding: The 4th Circuit affirms dismissal of plaintiff’s medical malpractice claim filed under the Federal Tort Claims because the claim was untimely; although plaintiff’s first lawyer filed his FTCA med-mal claim with the U.S. Department of Health & Human Services in 2008, that lawyer had left the law firm when the firm in 2012 returned to HHS the unopened certified letter denying plaintiff’s claim, the second firm lawyer assigned to the case did not file the federal complaint until five months after expiration of his time to begin an action under 28 U.S.C. § 2401(b).

Maryland Law

Because the Federal Tort Claims Act merely waives sovereign immunity to make the U.S. amenable to a state tort suit, the substantive law of the state where the tort occurred determines the liability of the U.S. As the parties agree, here the Maryland plaintiffs wishing to bring medical malpractice claims against the U.S. under the FTCA must comply with Maryland’s pre-filing requirements.

On Nov. 8, 2012, plaintiff, represented by an Ashcraft & Gerel lawyer (but not the earlier one who had left the firm), filed a claim with Maryland’s Health Care Alternative Dispute Resolution Office. Under Maryland law, a plaintiff must submit a med-mal claim to this state agency before filing the claim in court. Ultimately, he filed a complaint with the federal district court on May 3, 2013, nearly five months after expiration of his time to begin an action under 28 U.S.C. § 2401(b).

The district court granted the government’s motion to dismiss for lack of subject matter jurisdiction because, at the time, we considered the FTCA’s limitations period to be jurisdictional. On appeal, we held the case in abeyance while the Supreme Court resolved that very issue. In U.S. v. Kwai Fun Wong, 135 S. Ct. 1625 (2015), the court held that the FTCA’s limitations period is not a jurisdictional rule but a claims-processing rule that allows for equitable tolling. We remanded appellant’s case so the district court could decide whether appellant was entitled to equitable tolling. The district court said he was not.

On appeal, appellant contends that his claim was timely because, by filing his claim with the state agency an action was begun under § 2401(b) of the FTCA. He also contends that, even if his claim was untimely, he is entitled to equitable tolling.

‘Action Begun’

In order to determine whether appellant’s claim was timely, we must decide when an “action is begun” under § 2401(b). The word “action” in § 2401(b) has only one reasonable meaning: it refers to a federal civil action. The language of the statute and the context in which it occurs confirm this.

Both the text and statutory context indicate that the word “action” in § 2401(b) refers only to a civil action filed in court. The statute requires a plaintiff to bring a federal civil action within six months after a federal agency mails its notice of final denial of his claim. The only way to begin a federal civil action is by filing a complaint with a federal district court. Appellant did not file his complaint with the district court within the six-month limitations period; therefore, his complaint was untimely.

‘Extraordinary Circumstances’

Plaintiffs are not entitled to equitable tolling of the limitations period, as they have not shown that they pursued their rights diligently and extraordinary circumstances prevented them from filing on time. The failure to receive notice is largely attributable to action or inaction by past and present lawyers at the firm representing plaintiff. Those lawyers took no steps to ensure that plaintiff’s case would be handled seamlessly after the first lawyer left the firm. They never notified HHS about the departure of one lawyer or the substitution of another. When the certified letter arrived at the firm’s office, the letter was simply rejected without being opened. Nothing extraordinary occurred here. This is just the type of thing that can happen when busy lawyers inadvertently fail to handle personnel changes and office mail carefully.

We recognize that, in some cases, state requirements like Maryland’s may place unusually high burdens on FTCA plaintiffs. There is no guarantee that a state agency will process claims swiftly enough to allow a plaintiff to file within the FTCA’s limitations period. The federal statute does not require a plaintiff to complete all state law requirements before filing a complaint with the district court. Rather, a plaintiff fully satisfies the claims-processing objective by filing a complaint with the federal district court within the limitations period while simultaneously working to satisfy state law requirements.

Judgment affirmed.

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