Sanchez v. Cotter, MD

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Jeffrey R. Howard, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [13-1333]

Case: 13-1333

Document: 00116635917

Page: 1

Date Filed: 01/14/2014

Entry ID: 5793983

United States Court of Appeals
For the First Circuit
No. 13-1333
ANGEL SANCHEZ, Individually and as
Administrator of the Estate of Rafaela Sanchez,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Torruella, Howard, and Kayatta,
Circuit Judges.

Paul F. Kenney, with whom Kristen A. Barnes and Kenney &
Conley, P.C. were on brief, for appellant.
George B. Henderson, II, Assistant United States
Attorney, with whom Carmen M. Ortiz, United States Attorney, was on
brief, for appellee.
Timothy C. Kelleher III, Cooley Manion Jones LLP, Thomas
R. Murphy, Law Offices of Thomas R. Murphy, LLC, Thomas M. Bond,
The Kaplan/Bond Group, Sara J. Trezise and Trezise Law Group on
brief for Massachusetts Academy of Trial Lawyers, amicus curiae.

January 14, 2014

Case: 13-1333

Document: 00116635917

Page: 2

KAYATTA, Circuit Judge.

Date Filed: 01/14/2014

Entry ID: 5793983

Plaintiff Angel Sanchez, a

widower and the executor of his wife's estate, sued his wife's
doctors for medical malpractice.

As it turned out, those doctors

were federal employees, against whom claims are forever barred
unless brought within the two-year limitations period Congress
allowed under the Federal Tort Claims Act ("FTCA"), as opposed to
the three-year period allowed by Massachusetts law for medical
malpractice claims.

As it also turned out, those doctors' status

as federal employees was not readily apparent to one who undertook
no

investigation.

Mr.

Sanchez's

lawyers

both

made

no

such

investigation and waited more than two years before presenting his
claim.

Based on our prior, controlling holding in a closer case,

Gonzalez v. United States, 284 F.3d 281 (1st Cir. 2002), we affirm
the district court's decision that it had no choice but to dismiss
this lawsuit.
I. Background
The accuracy of the allegation that the doctors were
negligent is not yet at issue in this stage of this lawsuit.
Otherwise, the material facts of this case, especially those
relating to the procedural history and posture of the suit, are
undisputed.

Cf. Merlonghi v. United States, 620 F.3d 50, 54 (1st

Cir. 2010).

-2-

Case: 13-1333

Document: 00116635917

Page: 3

Date Filed: 01/14/2014

Entry ID: 5793983

Dr. Rafaela Sanchez1 died on April 24, 2009, two days
after she delivered her third child, by caesarean section, at North
Shore Medical Center-Salem Hospital ("NSMC").2

The doctors who

treated her at NSMC, Drs. Kristin Cotter and Kalinda Dennis, worked
for Lynn Community Health Center ("LCHC"), where Dr. Sanchez had
received prenatal care.

Angel Sanchez contends that the treating

doctors knew or should have known that his wife had at least one of
two potentially dangerous conditions, placenta previa3 and placenta
accreta,4 and so required special care in the removal of her
placenta, and probably a hysterectomy, to minimize the risk of
hemorrhage.

Plaintiff claims that Dr. Cotter left the hospital

after the delivery, leaving Dr. Sanchez in the care of Dr. Dennis,5

1

Rafaela Sanchez was an anesthesiologist.

2

The allegation in the complaint that Dr. Sanchez was
admitted to the hospital on April 22, 2010, but died April 24,
2009, appears to be a scrivener's error.
3

Placenta previa is "the condition in which the [placenta]
is implanted in the lower segment of the uterus, extending to the
margin of the internal cervical os [(opening)] or partially or
completely obstructing the os." Stedman's Medical Dictionary 1389
(Maureen Barlow Pugh et al. eds., 27th ed. 2000).
4

Placenta accreta is "the abnormal adherence of the
chorionic villi [(tiny vascular projections from the membrane
between fetus and mother)] to the myometrium [(the muscular wall of
the uterus).]"
Stedman's Medical Dictionary 1175, 1389, 1962
(Maureen Barlow Pugh et al. eds., 27th ed. 2000). Essentially,
parts of the placenta attach too strongly to the uterine wall. See
Domann v. Vigil, 261 F.3d 980, 982 n.2 (10th Cir. 2001).
5

Plaintiff claims that Dr. Dennis was only a medical
resident; the government disagrees. The point is immaterial to
this appeal.
-3-

Case: 13-1333

Document: 00116635917

Page: 4

Date Filed: 01/14/2014

Entry ID: 5793983

and that neither doctor performed a hysterectomy until after
hemorrhaging began.

When the bleeding persisted (or resumed), Dr.

Sanchez died.
Mr. Sanchez retained legal counsel at some point prior to
February 2010.

Counsel waited until April 11, 2012--35 ½ months

after Dr. Sanchez's death--to file suit on Mr. Sanchez's behalf
against Dr. Cotter in Massachusetts state court.

Nine days later,

they filed an amended complaint, adding Dr. Dennis as a defendant.
Unbeknownst to Mr. Sanchez and his counsel, as employees of LCHC
both

doctors

were

deemed

to

be

federal

employees

under

the

Federally Supported Health Centers Assistance Act of 1992, Pub. L.
102-501, 42 U.S.C. § 233.

As we have explained before, see

Gonzalez v. United States, 284 F.3d 281, 286, 288, 291 (1st Cir.
2002), and explain again below, tort claims against such doctors
for malpractice within the scope of their employment are claims
against the United States, barred if not properly pursued within
two years of their accrual (as opposed to three years under
Massachusetts law, see Mass. Gen. Laws ch. 260, § 2A).
The United States removed the case to federal court, and
substituted itself as the defendant. See 28 U.S.C. § 2679(d). The
district court dismissed the suit for lack of subject matter
jurisdiction after finding it time-barred.

-4-

Mr. Sanchez appeals.

Case: 13-1333

Document: 00116635917

Page: 5

Date Filed: 01/14/2014

Entry ID: 5793983

II. The Federal Tort Claims Act
Federal courts lack jurisdiction over claims against the
United States unless the government has waived its sovereign
immunity. See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).
Absent waiver, this immunity applies to tort claims against federal
employees for conduct within the scope of their employment. Cf. 28
U.S.C. §§ 1346(b)(1), 2679; Merlonghi v. United States, 620 F.3d
50, 54 (1st Cir. 2010).

The FTCA is "a limited waiver" of that

immunity, Abreu v. United States, 468 F.3d 20, 23 (1st Cir. 2006),
giving federal courts jurisdiction over civil claims against the
government for death or injury "caused by the negligent or wrongful
act or omission of any employee of the Government . . . under
circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place
where the act or omission occurred."

28 U.S.C. § 1346(b)(1).

The FTCA's limited waiver of immunity comes with an
expiration date.

Specifically, an FTCA claim is "forever barred

unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun
within

six

months

after"

the

agency

-5-

denies

the

claim.

Id.

Case: 13-1333

Document: 00116635917

§ 2401(b).6

Page: 6

Date Filed: 01/14/2014

Entry ID: 5793983

The FTCA's two-year bar for presenting claims creates

a trap for the unwary who fail to recognize its applicability to a
specific case and thus fail to act at all within two years of
accrual, or who sue in time but fail to first present the claim to
the appropriate federal agency.

In 1988, Congress provided leeway

for individuals in the latter category.

See Federal Employees

Liability Reform and Tort Compensation Act of 1988 ("Westfall
Act"), Pub. L. 100-694, 102 Stat. 4563. Under the Westfall Act, if
a tort case is filed in federal court or removed from state court
and the United States is substituted as the defendant, see 28
U.S.C. § 2679(d)(1)-(3), the claim will be deemed timely under
section 2401(b) if "(A) the claim would have been timely had it
been filed on the date that the underlying civil action was
commenced, and (B) the claim is presented to the appropriate
Federal agency within sixty days after the dismissal of the civil
action."

28 U.S.C. § 2679(d)(5).

Congress has not otherwise seen

fit to alter the two-year bar (in a way material to this suit)

6

We read this disjunctive language as setting out two
deadlines, both (not just either) of which must be satisfied.
Otherwise, there would effectively be no deadline at all. See
Ellison v. United States, 531 F.3d 359, 361-62 (6th Cir. 2008).
The requirement that an FTCA claim be administratively exhausted
derives independently from 28 U.S.C. § 2675(a), which provides that
an FTCA "action shall not be instituted . . . unless the claimant
shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency
in writing . . . ."
-6-

Case: 13-1333

Document: 00116635917

Page: 7

since doubling its length in 1949.

Date Filed: 01/14/2014

Entry ID: 5793983

See 81 Cong. Ch. 92, § 1, 63

Stat. 62 (1949).
It is undisputed that, in this case, Drs. Cotter and
Dennis

were

federal

employees

at

the

time

of

their

alleged

malpractice, the FTCA applies to the claims brought against them
(now against the United States), and Mr. Sanchez did not present
his claim to any federal agency, or file suit, within two years of
his wife's death.

The district court therefore dismissed this

lawsuit, finding that it lacked subject matter jurisdiction to hear
a case against the United States not allowed under the FTCA.
III. Analysis
Mr. Sanchez argues that under the "discovery" rule, his
claim did not accrue until May 27, 2010, at the earliest.
Alternatively, he argues that the running of the two-year period
was equitably tolled long enough to salvage this case.

Having

rejected such arguments in Gonzalez on facts more favorable to a
tardy plaintiff, and otherwise finding no basis in the law to reach
a contrary result in this case, we must also reject Mr. Sanchez's
arguments and affirm the judgment of dismissal.
A.

Exhaustion or timeliness?
Questions of exhaustion and timeliness pose similar

potential

bars

to

this

lawsuit.

They

may

both

be

seen

as

jurisdictional bars. See, e.g., Román-Cancel v. United States, 613
F.3d 37, 42 (1st Cir. 2010) (timeliness); Barrett ex rel. Estate of

-7-

Case: 13-1333

Document: 00116635917

Page: 8

Date Filed: 01/14/2014

Entry ID: 5793983

Barrett, 462 F.3d 28, 37 (1st Cir. 2006) (exhaustion); Acosta v.
U.S. Marshals Serv., 445 F.3d 509, 513 (1st Cir. 2006)(same);
Gonzalez v. United States, 284 F.3d 281, 287, 291 n.11, 293 (1st
Cir. 2002) (treating timeliness as jurisdictional in affirming
dismissal of an unexhausted claim, and concluding that section
2679(d)(5) did not apply).

Alternatively, either or both may be

seen as nonjurisdictional, but essential, claim-processing rules.
See, e.g., Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1039 (9th Cir.
2013) (en banc) (concluding that section 2401 constitutes a nonjurisdictional claim-processing rule); Glade ex rel. Lundskow v.
United States, 692 F.3d 718, 723 (7th Cir. 2012) (exhaustion
requirement is not jurisdictional and may be waived).

In either

event, we certainly have some "leeway to choose among threshold
grounds for denying audience to a case."
v.

Malaysia

Int'l

Shipping

Corp.,

549

Sinochem Int'l Co. Ltd.
U.S.

422,

431

(2007)

(citations and internal quotation marks omitted).
Determining that this lawsuit should have been dismissed
without prejudice due to failure to exhaust would be the narrowest
approach to disposing of this appeal, because it is undisputed that
Mr. Sanchez has never presented his claim to the Department of
Health and Human Services.

See McNeil v. United States, 508 U.S.

106, 113 (1993); Celestine v. Mount Vernon Neighborhood Health
Ctr., 403 F.3d 76, 84 (2d Cir. 2005) (affirming a dismissal where
failure to exhaust barred the claim "and would continue to bar it

-8-

Case: 13-1333

Document: 00116635917

Page: 9

Date Filed: 01/14/2014

Entry ID: 5793983

even if any possible unjust effects of disparities between state
and federal statutes of limitations were remedied by equitable
tolling."). Mr. Sanchez would then presumably present the claim to
the agency within sixty days of final entry of the judgment of
dismissal; the agency would deny the claim as untimely, and Mr.
Sanchez would file suit anew. At that point, the FTCA's exhaustion
requirement arguably would have been satisfied, leaving only the
question of timeliness.

With the aid of the Westfall Act, Mr.

Sanchez would then present exactly the same arguments that he now
presents, asking us to find that this suit was commenced within two
years of when his claim accrued.
Little commends such an approach unless it is truly
necessary.

Nor

does

any

party

request

it,

each

presumably

recognizing that it would add expense and delay without offering
any countervailing pragmatic benefit.

Accordingly, as we did in

Gonzalez, we find it most appropriate to forgo the question of
administrative exhaustion and go straight to the question of
timeliness upon which the final disposition of this case will
necessarily turn.7

7

In light of our decision to reach the timeliness question
first, we need not address whether exhaustion is waivable or
whether the government has waived that argument on appeal. Cf.
Dávila-Álvarez v. Escuela de Medicina Universidad Cent. del Caribe,
257 F.3d 58, 67 (1st Cir. 2001) (holding that the government waived
the exhaustion requirement).
-9-

Case: 13-1333

B.

Document: 00116635917

Page: 10

Date Filed: 01/14/2014

Entry ID: 5793983

When did the claim accrue?
The parties agree that our review of the district court's

ruling under Rule 12(b)(1)8 is de novo, as the relevant facts are
not disputed. See Donahue v. United States, 634 F.3d 615, 623 (1st
Cir. 2011) (noting that while appellate review of dismissals under
Rule 12(b)(1) "sometimes requires deference to the trial court," an
appeal

involving

"only

the

objective

reasonableness

of

the

plaintiffs' failure to discern at an earlier time both their injury
and its likely cause" is reviewed de novo).
As noted above, the FTCA limitations period expires two
years after the claim accrues.

28 U.S.C. § 2401(b).

A cause of

action generally accrues when the plaintiff is injured.
634 F.3d at 623.

Donahue,

Nevertheless, in FTCA medical malpractice cases,

the "discovery rule" may delay accrual until a plaintiff knows (or
reasonably should know) both that he is injured and what caused his
injury; it does not, however, postpone accrual until a potential

8

Although Plaintiff argues in seeking equitable tolling that
the timeliness of his complaint is not jurisdictional, he does not
appear to object to Rule 12(b)(1) as the vehicle for the dismissal
here.
Even if the motion should have been brought under Rule
12(b)(6), however, it would then have been converted to a motion
for summary judgment, Fed. R. Civ. P. 12(d). See Cruz-Vázquez v.
Mennonite Gen. Hosp., Inc., 717 F.3d 63, 68 & n.6 (1st Cir. 2013)
(where motion should have been considered under Rule 12(b)(6), not
12(b)(1), reviewing the record under the summary judgment
standard). Given that the facts are undisputed and both sides were
heard and presented evidence on the timeliness issue, we cannot see
how the result would have changed had plaintiff asked the court to
proceed under Rule 56. Cf. Ramírez-Carlo v. United States, 496
F.3d 41, 46 (1st Cir. 2007) (reviewing a grant of summary judgment
as to the timeliness of an FTCA claim).
-10-

Case: 13-1333

Document: 00116635917

Page: 11

Date Filed: 01/14/2014

Entry ID: 5793983

plaintiff also learns that his injury was negligently inflicted.
See id.; see also United States v. Kubrick, 444 U.S. 111, 122-23
(1979). The discovery rule incorporates an objective standard. To
delay commencement of the running of the statute of limitations,
"the

factual

basis

for

the

cause

of

action

must

have

been

inherently unknowable [that is, not capable of detection through
the exercise of reasonable diligence] at the time of injury."
Gonzalez, 284 F.3d at 288-89 (citation and internal quotation marks
omitted); see also Ramírez-Carlo v. United States, 496 F.3d 41, 47
(1st Cir. 2007).

"Once a plaintiff knows of the injury and its

probable cause, he/she bears the responsibility of inquiring among
the medical and legal communities about whether he/she was wronged
and should take legal action."

Gonzalez, 284 F.3d at 289 (citing

Kubrick, 444 U.S. at 123).
It is beyond reasonable dispute that the claim here
accrued well before April 11, 2010.
2009, after giving birth.
complete and obvious.

Dr. Sanchez died on April 24,

Her injury was then, by its nature,

The cause--post-partum bleeding–-was both

known and chronicled contemporaneously.

The death of a generally

healthy woman in childbirth is sufficiently rare in this country
today so as to make most reasonable people ask why it happened.
Mr. Sanchez is apparently just such a reasonable person, who wisely
and understandably turned to experts in an effort to answer that

-11-

Case: 13-1333

Document: 00116635917

Page: 12

Date Filed: 01/14/2014

Entry ID: 5793983

question, retaining his present law firm sometime prior to February
2010.9
The decision to retain malpractice counsel following a
mother's death in childbirth is a telling sign that a reasonable
person would have concluded that "reasonable diligence" was called
for in order to determine whether there was negligence.

Gonzalez,

284 F.3d at 289-90 (claim accrued at the latest when plaintiff
retained counsel); see also Ramírez-Carlo, 496 F.3d at 48.

Here,

moreover, there was much information available to Plaintiff and his
counsel to raise further cause for diligent inquiry. The operative
and discharge reports10 identified the risk factors known before the
first surgery (placenta previa and possible placenta accreta),
explained what steps were taken, and expressly attributed Dr.
Sanchez's hemorrhage to "DIC"--that is, disseminated intravascular

9

Neither Mr. Sanchez nor his counsel have volunteered the
precise date counsel was retained.
At oral argument, counsel
indicated that he was on board by no later than roughly two months
before he received, in February 2010, 427 pages of hospital records
in response to his request.
10

The government, which offered these reports, averred only
that it had received them from Plaintiff's counsel. Plaintiff does
not dispute that they were part of the 427 pages of reports
Plaintiff received in February 2010. (The records that Plaintiff
says were incomplete were the intraoperative, not postoperative,
reports.) Plaintiff also offers no evidence as to when his counsel
obtained the Amended Surgical Pathology Report.
-12-

Case: 13-1333

Document: 00116635917

Page: 13

Date Filed: 01/14/2014

coagulation, a dangerous bleeding condition.11

Entry ID: 5793983

Those reports,

combined with the Amended Surgical Pathology Report that was
completed and available in May 2009, provide evidence that Dr.
Sanchez suffered from both placenta previa and placenta accreta,
the risky conditions on which plaintiff's complaint was premised.
Mr.

Sanchez

notes

available until May of 2010.

that

the

autopsy

report

was

not

The autopsy report, though, largely

confirmed information in or suggested by the already available
records: it listed as the cause of death postpartum DIC of unknown
cause, and both placenta previa and placenta accreta as "final
diagnoses."

In short, it revealed no new cause of injury.

Mr. Sanchez also argues that the claim did not accrue
until April 2012, when he received legible copies of the final six
pages of medical reports including the handwritten intraoperative
reports.
efforts

He does not adequately explain, however, either what
were

made

to

get

them

sooner,

or

precluded him from timely filing his claim.

how

their

absence

Cf. T.L. ex rel.

Ingram v. United States, 443 F.3d 956, 964-65 (8th Cir. 2006)
(noting that a cause of action may not accrue until critical
medical records are received, but declining to toll the limitations

11

Disseminated intravascular coagulation is "a hemorrhagic
syndrome that occurs following the uncontrolled activation of
clotting factors and fibrinolytic enzymes throughout small blood
vessels . . . resulting in tissue necrosis and bleeding." Stedman's
Medical Dictionary 371 (Maureen Barlow Pugh et al. eds., 27th ed.
2000).
-13-

Case: 13-1333

Document: 00116635917

Page: 14

Date Filed: 01/14/2014

Entry ID: 5793983

period where the plaintiff did not show that only the missing
records

held

the

critical

information).

He

points

to

no

information in these records that is both newly revealed and
reasonably necessary to ascertaining the cause of the injury.

In

sum, in this case arising out of an unexpected nosocomial death,
witnessed by identifiable professionals who chronicled the injury,
its cause, and their own acts, the claim accrued at the latest by
the date prior to February 2010 when Mr. Sanchez retained counsel
to investigate a malpractice claim. Whether it accrued earlier, we
need not decide.
C.

Is equitable tolling available under the FTCA?
There exists a long running debate over whether the

concept of equitable tolling can be used to delay the running of
the timeliness requirements that are conditions to the FTCA's
waiver of sovereign immunity. Rather than focusing directly on the
language and history of the FTCA as one might expect, courts have
generally approached this question indirectly, asking whether the
applicable time limit is "jurisdictional" and, if so, deeming
equitable tolling to be unavailable.

See, e.g., Kwai Fun Wong v.

Beebe, 732 F.3d 1030, 1035-47 (9th Cir. 2013); Arteaga v. United
States, 711 F.3d 828, 832-3 (7th Cir. 2013); see generally John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 133-38 (2008)
(discussing the relationship between absolute or "jurisdictional"
deadlines and equitable tolling). Most recently, the Supreme Court

-14-

Case: 13-1333

Document: 00116635917

Page: 15

Date Filed: 01/14/2014

has given added credence to this approach.

Entry ID: 5793983

See Sebelius v. Auburn

Reg'l Med. Ctr., 133 S.Ct. 817, 824 (2013) ("[W]ere we to type the
governing statute 'jurisdictional'" there could "be no equitable
tolling." (citation omitted)).
This
timeliness

circuit

has

requirements

previously

are

opined

jurisdictional.

that

the

FTCA's

See,

e.g.,

Román-Cancel v. United States, 613 F.3d 37, 42 (1st Cir. 2010)
(explaining that "[c]ompliance with the FTCA's temporal deadlines
is both mandatory and jurisdictional").

We have also nevertheless

assumed that equitable tolling can be applied to those deadlines.
See Ramírez-Carlo v. United States, 496 F.3d 41, 48-49 & n.3 (1st
Cir. 2007); Rakes v. United States, 442 F.3d 7, 25 (1st Cir. 2006).
But see McIntyre v. United States, 387 F.3d 38, 61 & n.8 (1st Cir.
2004) (questioning whether equitable tolling applies to FTCA).

We

are not, it seems, the only circuit to have proceeded in this
manner.

See T.L. ex rel. Ingram v. United States, 443 F.3d 956,

961 (8th Cir. 2006).
The observation in Sebelius and like cases that labeling
these deadlines "jurisdictional" would preclude application of
equitable tolling suggests that something must eventually give in
our circuit's jurisprudence.

The Supreme Court's most recent

guidance on what is "jurisdictional" suggests that we may have
erred in presuming that subject matter jurisdiction hinged on
compliance with the FTCA's deadlines for presenting claims.

-15-

See

Case: 13-1333

Document: 00116635917

Page: 16

Date Filed: 01/14/2014

Entry ID: 5793983

generally Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (pressing
"a strict distinction between truly jurisdictional rules . . . and
nonjurisdictional claim-processing rules" (citations and quotation
marks omitted)).

If we did so err, however, it does not follow

that we also erred in presuming that equitable tolling can stay the
running of the FTCA's deadlines.

To the contrary, classifying the

deadlines as non-jurisdictional enhances the case for finding
equitable tolling to be available.

See Kwai Fun Wong, 732 F.3d at

1038 (FTCA deadlines are not jurisdictional and equitable tolling
is available), overruling Marley v. United States, 567 F.3d 1030
(9th Cir. 2009).
To

decide

the

case

now

before

us,

we

need

not

definitively unravel this skein. Rather, we can approach this case
as we approached our decision in Gonzalez, giving the plaintiff the
benefit of assuming that equity can toll the running of the FTCA's
limitations period if a factual basis for tolling exists.
D.

Has plaintiff established a factual basis for invoking
equitable tolling?
The trap for the unwary into which Mr. Sanchez has fallen

arises because doctors who work at facilities that may appear to be
nongovernmental

may

nevertheless

be

deemed

federal

employees

because of the manner in which their employers receive federal
See 42 U.S.C. § 233(g).

The risk of encountering such a

trap need be taken seriously.

A publicly-searchable federal

funds.

database suggests that, for 2014, there are thirty-one entities
-16-

Case: 13-1333

Document: 00116635917

Page: 17

Date Filed: 01/14/2014

Entry ID: 5793983

like LCHC in Massachusetts and seventy-seven in the First Circuit.
U.S. Dep't of Health and Human Servs. Health Res. and Servs.
Admin.,

Search

current

deemed

entities,

http://bphc.hrsa.gov/ftca/healthcenters/ftcahcdeemedentitysearch.
html (last visited Dec. 16, 2013).

Understood in this context,

Gonzalez instructs that lawyers handling medical malpractice cases
cannot simply assume without investigation that the longer of the
two potentially applicable limitations periods controls.

Instead,

they need make inquiry (or, perhaps, simply sue within two years of
accrual).12

See Gonzalez, 284 F.3d at 291 (noting that "[n]o

evidence has been presented that [plaintiff] or her attorneys made
any inquiry whatsoever as to the status of the defendants as
federal employees.").

As the Seventh Circuit recently explained,

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 . . . and if a member of that
bar is not aware and misleads a client, . . .
the lawyer may be liable for legal malpractice
but the government can still invoke the
statute of limitations.
Arteaga v. United States, 711 F.3d 828, 834-35 (7th Cir. 2013)
(citations omitted).

12

Massachusetts attorneys have added incentive to consider
a two-year deadline. Massachusetts requires claims against it to
be presented to the appropriate entity within two years of accrual,
see Mass. Gen. Laws ch. 258, § 4, and does not toll that period
simply because a plaintiff is unaware that their doctor may have
been a public employee. See Krasnow v. Allen, 29 Mass. App. Ct.
562, 566-70 (1990).
-17-

Case: 13-1333

Document: 00116635917

Page: 18

Date Filed: 01/14/2014

Entry ID: 5793983

Good lawyers, like good doctors, make mistakes.
Sanchez's

counsel

either

were

unaware

of

the

FTCA

Mr.

two-year

deadline, or simply assumed without asking that none of the
possible defendants were federal employees.

Counsel do not say

which it was. Given what otherwise appears to be a firm dedication
to their client's case, one suspects it was the former.

In any

event, neither inaction born of ignorance nor recklessness in the
face of a known risk could provide a basis for establishing
diligence given the holding in Gonzalez.

And "due diligence is a

sine qua non for equitable tolling." Donahue v. United States, 634
F.3d 615, 629 (1st Cir. 2011).
Mr. Sanchez also argues that any inquiry regarding the
employment status of the doctors would have been unavailing.

He

contends that LCHC never informed him of its federal status, that
his wife's records did not reveal that the doctors were federal
employees, and that the Department of Health and Human Services
relied on internal records, not publicly available information, to
certify the status of LCHC and the doctors for litigation purposes.
The government contends that, if plaintiff had used it, a website
and hotline for the U.S. Department of Health and Human Services,
Health Resources and Services Administration would have adequately
informed him that LCHC and its employees were federally funded and
might be covered by the FTCA.

As Mr. Sanchez notes, however, in

2009 and 2010, that website would not have informed him that the

-18-

Case: 13-1333

Document: 00116635917

Page: 19

Date Filed: 01/14/2014

Entry ID: 5793983

specific doctors who treated his wife were deemed to be federal
employees, and not every clinic that receives federal funds (or was
listed on that website) was necessarily covered by section 233. In
addition, we observe that the information regarding FTCA coverage
and the hotline was hardly conspicuous on the site.
Even so, the information on the website, had counsel
availed themselves of it, would certainly have put them on at least
heightened inquiry notice regarding the treating doctors' deemedfederal status.

Moreover, a Lexis or Westlaw search for Lynn

Community Health Center would have revealed Harrison v. United
States,

284

F.3d

293

(1st

Cir.

2002),

a

2002

FTCA

medical

malpractice case against another of LCHC's doctors. Simply put, no
reasonably diligent lawyer who checked any of these sources of
information would have let two years pass without doing much more.
Mr. Sanchez has also offered no evidence that a phone
call or letter to LCHC inquiring about its (or its doctors') status
would have been ignored, or would have generated a misleading
response.
doctors,

We have examined the record for any indication that the
LCHC,

or

the

government

gave

plaintiff

any

false

information or delayed unduly in answering important requests so as
to thwart, intentionally or otherwise, efforts by plaintiff to
ascertain whether this suit belonged in federal court.
found none.

-19-

We have

Case: 13-1333

Document: 00116635917

Page: 20

Date Filed: 01/14/2014

Entry ID: 5793983

We agree that the federal government could do more to
publicize or alleviate the statute of limitations trap created by
section 233.

Be that as it may, the absence of due diligence here

is no less patent, and likely more so, than in Gonzalez.

As we

noted above, and as was not the case in Gonzalez, a doctor from
LCHC had already been identified as a federal employee in an FTCA
suit. Both Gonzalez and Harrison were decided in 2002, well before
the events in question here.

If, on these facts, we were to find

the statutory deadlines tolled, then it would follow that Gonzalez
was wrong.
Understandably, finding Gonzalez to be wrongly decided is
precisely what plaintiff invites us to do.

Departing from circuit

precedent,

only

however,

can

be

justified

by

"supervening

authority" (such as a ruling of the Supreme Court or this Court en
banc), Muskat v. United States, 554 F.3d 183, 189 (1st Cir. 2009),
or "in those relatively rare instances in which authority that
postdates the original decision, although not directly controlling,
nevertheless offers a sound reason for believing that the former
panel, in light of fresh developments, would change its collective
mind."

United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011)

(citation and quotation marks omitted).

The latter justification

is narrowly construed, Igartúa v. United States, 626 F.3d 592,
603-04 (1st Cir. 2010), and imposes an "exacting standard,"
Sánchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 96 (1st Cir.

-20-

Case: 13-1333

Document: 00116635917

Page: 21

Date Filed: 01/14/2014

Entry ID: 5793983

2012); see also San Juan Cable LLC v. P.R. Tel. Co., Inc., 612 F.3d
25, 34 (1st Cir. 2010) (noting that the contrary conclusion of
another circuit court does not "divest [a panel] opinion of its
customary stare decisis effect within the circuit").
To suggest that the development of the law in other
circuits, had it been known to the Gonzalez panel, would have
caused it to change its collective mind, Mr. Sanchez relies on
cases from two other circuits:

Santos ex rel. Beato v. United

States, 559 F.3d 189 (3d Cir. 2009), and Valdez ex rel. Donely v.
United States, 518 F.3d 173 (2d Cir. 2008).

Plaintiff is correct

that these and subsequent cases from those two circuits reject the
proposition that by failing to ask specifically about possible
federal employment, counsel necessarily fail the due diligence
test.

Neither circuit, however, blesses complete inaction.

In

Santos, for example, counsel actually ran a public records search
on the relevant doctors' employer.

Santos, 559 F.3d at 200. In

Phillips v. Generations Family Health Ctr., 723 F.3d 144 (2d Cir.
2013), the Second Circuit recently distinguished a case in which
counsel did "literally nothing to investigate the defendant's
status"

and

incorporates,

adopted

an

among

other

approach
factors,

to

equitable

the

prior

tolling

that

knowledge

and

experience of counsel. Id. at 152-56. That approach runs the risk
of effectively holding better, more knowledgeable practitioners to
a higher standard of care.

This seems a bit odd, but we need not

-21-

Case: 13-1333

Document: 00116635917

consider

it

further

Page: 22

because

Mr.

Date Filed: 01/14/2014

Sanchez's

counsel

Entry ID: 5793983

offers

no

significant evidence of their medical malpractice experience. More
importantly, whether one views the approaches taken by those two
circuits as appropriate or not, they hardly paint a picture of a
rush to the exit so as to allow us to overrule our own controlling
precedent here.
Statutes of limitations balance a desire to decide claims
on their merits against a desire to provide repose and avoid the
unfairness of litigating stale claims encumbered by faded memories.
Under federal law, Congress strikes the chosen balance, leaving
perhaps some room for equitable dispensation where due diligence
could not have saved a claim.

Here, with no good explanation for

the complete failure to try to ascertain which limitations period
applied, no pertinent precedent allows the individual dispensation
requested.

We note, however, that while Mr. Sanchez has thus lost

his claim against his wife's doctors, he may not have yet lost
altogether his chance to recover full compensation for that loss
from any professionals responsible for the effects of the judgment
in this case.
IV. Conclusion
For these reasons, the judgment of the district court is
affirmed.

-22-