In October of 2011, a pregnant Maureen Ogiemwonyi was taken to North Shore Medical Center for delivery of her baby. During the ceasarean section that was performed, Ms. Ogiemwonyi was caused to sustain serious and severe personal injuries. She brought suit against two doctors and the health care facility alleging medical malpractice. Because one of the doctors was a federal employee, acting within the scope of her employment at the time of the alleged misconduct, the case was transferred to federal district court. Additionally, because the doctor was a federal employee, the United States was added to the case as an additional defendant in the matter. Thereafter, the Defendant moved to dismiss the case on the grounds that the Plaintiff, through her attorney, failed to comply with strict notice requirements in federal court.
Similar to the requirements in Massachusetts, in order to bring a tort action against the United States, a party seeking redress must timely provide notice of his or her claims in writing to the administrative body (agency) in which he or she is claiming is ultimately responsible for the alleged wrongful conduct. Once this notice is sent to the appropriate agency, a party must wait six months prior to filing suit in federal district court. This allows for the federal agency to make an attempt to resolve a potentially costly claim, and to do a thorough investigation of the matter in which there are allegations of liability. Under 28 U.S.C.A. § 2401:
A tort claim against the United States shall be 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 date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
If the administrative body fails to make a denial in writing, the absence of a denial can be taken as a “constructive” denial for purposes of a party bringing forward his or her case. While a party must wait six months for the denial of a claim, another clock starts to the tick: the time in which a party has to file suit. Continue reading →