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A Day Late, a Dollar Short: Opening a Governmental Snare Which Tricks Poor Victims Out of Their Medical Malpractice Claims

37 Pages Posted: 12 Apr 2001 Last revised: 1 Oct 2008

Richard W. Bourne

University of Baltimore School of Law

Abstract

In the early 1990's, Congress attempted to enhance the federal program for subsidizing community health centers for the poor by eliminating the need of the centers for medical malpractice insurance. It did so by making the federal government the only proper defendant victims of the centers' malpractice could sue by "deeming" the centers and their clinicians to be federal "employees" covered by the Federal Tort Claims Act.

The FTCA has a relatively short statute of limitations, two years, which cuts off liability for torts of federal employees no matter where they arise if the victim initiates suit more than two years after his or her claim accrues. Since patients of the community health centers have no reason to know of federal involvement in their medical services, when malpractice occurs neither they nor their lawyers are on notice that their state law claims are preempted by the FTCA. In states with statutes of limitations more generous than the federal two year period, a substantial number bring state law claims thought to be governed by state time limits only to discover too late that because of federal preemption their actions are time-barred.

The article discusses an unreported federal district court decision in Maryland, Kelly v. Total Health Care, Inc., to illustrate how the law frustrates valid claims brought by diligent but ignorant poor people who have by victimized by medical practice. The paper ends up recommending solution to the problem through better statutory construction than that which occurred in Kelly or alternatively through legislative revision of the FTCA or the community health assistance act.

JEL Classification: K12

Suggested Citation

Bourne, Richard W., A Day Late, a Dollar Short: Opening a Governmental Snare Which Tricks Poor Victims Out of Their Medical Malpractice Claims. University of Pittsburgh Law Review, Vol. 62, p. 87, 2000. Available at SSRN: https://ssrn.com/abstract=266216

Richard W. Bourne (Contact Author)

University of Baltimore School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21201
United States
410-837-4508 (Phone)
410-837-4560 (Fax)

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