What is the statute of limitations in an FTCA case? The FTCA allows injured people to recover money damages when a federal employee causes the injury. The FTCA applies to medical malpractice committed by federally employed health care providers. Victims of medical malpractice must bring claims within a limited time under the FTCA. How long do you have before your statute of limitations expires?

2 Year Statute of Limitations

The FTCA has a 2-year statute of limitations, so it’s important to find a federal tort attorney quickly. There is no tolling provision that gives children more time to file.  To bring a claim, you must present an administrative claim with the correct federal agency within 2 years of an injury resulting from negligence. Claimants must give the government agency at least six months to investigate before filing suit in federal court.  Mailing the claim is not enough to satisfy the statute of limitations. The government must actually receive the written claim.

A Moving Target: When the Deadlines Change Mid-Case

The statute of limitations changes based on how the government responds to the administrative claim.  A claim denial triggers a new statute of limitations that is only six months long. Claimants must file a request for reconsideration of the administrative claim or a federal lawsuit within six months of the date of a written denial sent by registered or certified mail. This is true even if the original 2 years from the date of the injury has not expired yet.

The government often takes more than six months to resolve an administrative claim. If the government investigates for more than six months, claimants could opt to file suit in federal court. But nothing in the FTCA requires a claimant to file suit.  The one caveat to going beyond six months is the potential application of state statutes of repose.

State Statutes of Repose

A statute of repose is similar to a statute of limitations in that a repose statute limits the time to file a lawsuit. The FTCA does not contain a statute of repose. But many state codes have a statute of repose for medical malpractice. A statute of repose eliminates the right to sue a defendant after a certain amount of time has passed.  A plaintiff can allow an administrative claim to continue pending for years if there is no state repose law that could be applied to the claim. But state repose laws may impose deadlines on when a lawsuit must be filed in court.

Strategies for Plaintiffs Facing Repose

There are a few strategies that may get FTCA claims past this dangerous defense.

1. Check for Waiver

Some states consider repose to be an affirmative defense subject to waiver if the Government fails to raise it. Illinois and Tennessee courts require the affirmative defense of repose to be timely pled, and have refused to dismiss claims when the defendant fails to do so.

2. Argue Preemption

The strongest argument for plaintiffs against repose is federal preemption. A federal law preempts a state law when the state law conflicts with the federal law. In Kubrick v. United States, the Supreme Court held that the FTCA is a “substantive part of the United States’ waiver of immunity which preempts any applicable state limitations period.” The Kubrick Court went a step further and stated that the statute of limitations period is a statute of repose.

To learn more about the FTCA and Statute of Repose, read Laurie Higginbotham’s article in the June 2014 issue of AAJ’s Trial Magazine.

What About The “Discovery Rule”?

What happens if you discover there was negligence involved in your care more than 2 years from the date of the care? Sometimes, there may still be a way to timely present a claim. A “discovery rule” applies to some FTCA cases, depending on when the claimant knew or should have known that an injury was caused by negligence. Consult with an experienced FTCA lawyer to find out if your claim might fall under the “discovery rule” exception.

Time Limits

If you were injured by medical negligence by a federal employee,  obtain copies of your medical records and consult with an experienced federal tort attorney as soon as possible to maximize your chances of successfully resolving your claim.

Exceptions

The Supreme Court has ruled to allow statute of limitations extensions in FTCA cases.

The Supreme Court of the United States recently decided Wong v. United States and June v. United States. Both cases dealt with the issue of equitable tolling of the statute of limitations.

June v. United States involves the failure of the plaintiff to file their administrative claim within two years of accrual of the claim. The plaintiff alleges that her failure resulted from fraud on the part of the Government. Wong v. United States involves the failure of the plaintiff to “file” his suit within six months of an agency denial. In short, the Mr. Wong asked the District Court to amend his private suit to include the United States as a defendant. The District Court failed to take action on Mr. Wong’s motion until three weeks after the FTCA’s six-month deadline.

Justice Kagan writes for a 5-4 majority, holding: “Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.” Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined Justice Kagan’s opinion.

In the opinion, the Court relied on Irvin v. Dep’t of Veterans Affairs, which held that time bars in suits between private parties are non-jurisdictional and presumptively subject to equitable tolling. This is a rebuttable presumption: Congress, if it chooses, may decide to create a jurisdictional time bar. But the Government must clear a “high bar” to show that a time bar is non-jurisdictional. The Court, in analyzing the FTCA, found there was no clear language or legislative history to suggest that Congress intended the section 2401(b) to function as a limit on the Court’s jurisdiction.

The Court rejected the two arguments the Government made. First, the Government argued that section 2401(b) language “shall be forever barred” is also found in the Tucker Act, which the Court has found to be jurisdictional. The Court rebutted that the “shall be forever barred” language was “commonplace in federal limitations statutes,” which were found to be non-jurisdictional. Second, the Government argued that all time limits against the Government are jurisdictional. But the Court held that this couldn’t be the case because then the exception would swallow the rule. Indeed, the FTCA’s mandate that a government be treated in the same manner and to the same extent as a private individual suggested that the Irvin rule—which applied to private parties—should also apply to the United States.

Justice Alito filed a dissenting opinion, in which the Chief Justice, Justices Scalia, and Thomas joined. The dissent’s argument turns almost entirely on the analogy to the Tucker Act line of cases. Justice Alito argues that Congress borrowing the “forever barred” language from the Tucker Act indicates its intent that the statute is jurisdiction. And, even if it were not jurisdictional, the “forever barred” language suggests that intended to eliminate equitable tolling.