On September 22, 2016 the United States Court of Appeals for the Second Circuit upheld the dismissal of a medical malpractice - wrongful death action which claimed that Generations Family Health Center ("Generations") had failed to timely diagnose the decedent's colon cancer. The case was dismissed because the plaintiff's attorney was unaware that Generations was federally funded which requires that a claim be filed with the Department of Health and Human Services pursuant to the Federal Tort Claims Act.
The case was originally filed in State Court, but the defense removed the case to Federal Court on the ground that Generations was federally funded and could only be sued in Federal Court. Once the case was transferred to Federal Court the only way the plaintiff, Administrator could avoid dismissal was to convince the Judge that his attorney's had pursued his rights diligently and that some extraordinary circumstance stood in their way. Though the Second Circuit found it "troubling that the government has not publicized resources for determining whether a given healthcare center is a deemed federal employee", it concluded that the plaintiff's law firm "could have discovered Generation's deemed status by performing a simple search through Westlaw." Moreover, the Court pointed out that the same law firm had a prior similar experience in suing another federally funded entity in State Court before it was removed to Federal Court.
Seemingly recognizing the second tragedy that had befallen the plaintiff's family, the Second Circuit ended it's decision noting: "A legal malpractice claim may be a possible recourse for a plaintiff caught in the deemed federal employee trap.... 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 the bar is not aware and misleads a client...,the lawyer may be liable for legal malpractice...." For more information, click the links below.