Asserting that decisions in the federal circuits evince confusion and conflict on whether the statute of limitations in the Federal Tort Claims Act (FTCA) is subject to equitable tolling and under what circumstances, CCL prepared and filed a petition for certiorari in the U.S. Supreme Court Monday in Sanchez v. United States. The underlying case involves the death of a mother (and anesthesiologist by profession) after giving birth to her third child, allegedly because her doctors failed to perform an immediate cesarean hysterectomy because of the patient’s known preexisting condition.  Plaintiff’s counsel, hired nearly a year later, still needed to make strenuous efforts to obtain a death certificate, which only became available more than a year later, and the patient’s medical records.  Complying with all the rigorous requirements of Massachusetts law and filing within the three-year state statute of limitations, the plaintiff was surprised to learn that the private doctors who cared for the plaintiff at a private hospital and who worked for a private health center were deemed federal employees for purposes of the FTCA. The United States substituted itself as defendant, removed the case to federal court, and then successfully moved for dismissal because the FTCA statute of limitations is only two years, not the three years provided by Massachusetts law.

 In rejecting the argument that equitable tolling should permit the action to go forward, the First Circuit held that the statute of limitations is jurisdictional and that counsel should have done more to discover the imputed federal status of the defendant-doctors.  The ruling conflicts with decisions in the Third, Seventh and Ninth Circuits.  In fact, the United States has filed a petition for certiorari, arguing that two Ninth Circuit decisions are erroneous and calling the landscape of decisions within the federal circuit to be fractured and confused.  CCL’s Petition was written by Robert S. Peck and Andre M. Mura and argues that the issue remains unresolved despite repeated reexaminations in the circuits, all of whom but the Tenth Circuit engage in some type of equitable tolling analysis, whether those courts believe it proper or not.  The analysis, however, still differs by circuit, despite the fact that there is no public record means of determining the imputed federal status of individual doctors, particularly when compulsory discovery is unavailable before a case is filed.  A decision on certiorari is expected before the end of the Supreme Court term.