Help Identify New Malpractice ‘Traps,’ See New Excerpt

Thursday, Oct. 22, 2020
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The Massachusetts Bar Association is in the process of updating its Traps for the Unwary publication, a member-exclusive reference guide last published in 2011 that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. We invite members to share any “traps” they’ve come across in their practice for possible inclusion in the next edition.

Share your trap suggestion by emailing it to Attorney James E. Harvey Jr. of O’Malley and Harvey LLP, who is again serving as editor-in-chief for the project and is working closely with liaisons from several MBA section councils.

To help you identify potential traps, the MBA will periodically publish excerpts from Traps for the Unwary in eJournal. View this week’s trap, plus previously shared examples, below.

TRAPS EXAMPLE: CLAIMS AGAINST PHYSICIANS EMPLOYED BY A GOVERNMENTAL ENTITY

Medical malpractice suits against doctors or nurses on the staff of hospitals and neighborhood health centers should usually be filed within two years after the cause of action accrues. A two-year statute of limitations applies to suits against federal employees under the Federal Tort Claims Act, and it can be difficult for an attorney to know whether a staff member is deemed to be a federal employee. The staff at federally funded health centers, like the East Boston Neighborhood Health Center, Lynn Community Health Center and dozens of others, are almost all "deemed" to be federal employees. Therefore, they can only be sued in federal court under the Federal Tort Claims Act. Presentment of the claim must be made within two years after accrual. 28 U.S.C. § 2401(b). Sanchez v. United States, 740 F.3d 47 (1st Cir. 2014), is a leading case teaching this point. The First Circuit calls this a “trap for the unwary”. Id. at 54. A list of such federally funded health care providers can be found at https://data.hrsa.gov/tools/ftca-search-tool

Similarly, physicians and other health care providers employed by a state or local governmental entity, for example, staff doctors and nurses at a state- or city-run hospital, e.g., UMass Memorial Hospital or Cambridge City Hospital, may be immune from suit for negligence due to sovereign immunity. See the Massachusetts Tort Claims Act, M.G.L. c. 258. Such a suit must be filed against the “public employer” pursuant to M.G.L. c. 258, § 2. Notice of the claim must be given to the public employer within two years. Williams v. Bresnahan, 27 Mass. App. Ct. 191, 192, 536 N.E.2d 365 (1989).

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