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.
With regards to the case mentioned above, Ms. Ogiemwonyis made a timely submission of her notice to the administrative office responsible for the doctor’s alleged misconduct. The agency, in turn, sent a letter to the Plaintiff denying the claim and informing the Plaintiff that they could file a written request for reconsideration or litigate their claim by filing suit within six months of the date of the mailing of the denial letter. The Plaintiff filed no request for reconsideration. The case was not filed until nine days after the expiration of the six month limitations period set forth by the federal government.
The Plaintiff argued under the theory of equitable tolling, that the clock for the statute of limitations should have stopped (or be tolled) to avoid an unfair application of the statute of limitations. Because of certain conversations with a paralegal at the administrative agency, there was some discussion as to whether or not a reconsideration was filed by the Plaintiff. The court was not persuaded. The court wrote, “the facts of this case fail to make out even a garden variety excuse, much less an extraordinary circumstance justifying the extraordinary relief of equitable tolling.” As such, the court allowed the Motion of the United States to Dismiss the action.
To read more on the case mentioned above, please go to the United States District Court for the District of Massachusetts’ website and search for Maureen Ogiemwonyi and Osagie Ogiemwonyi v. United States, Mark Collins, M.D., and North Shore Medical Center. If you believe you have a claim for personal injury or medical malpractice our office can help you determine when the statute of limitations runs in your case. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.