The Lawletter Vol 42 No 2
Can a suit against the federal government be maintained even though it would be time-barred under state law? That was the issue in a medical malpractice action arising in Louisiana. In Bagley v. United States, No. 8:16-CV-30, 2016 WL 6082023 (D. Neb. Oct. 18, 2016), the plaintiff underwent surgery at an Air Force base in Louisiana in 1997. Over the next 15 years, he experienced pain in the area of his right groin. In 2013, an x-ray revealed that a metallic object had been left in the plaintiff's body during the 1997 surgery. Within two years after discovering the object, the plaintiff filed an action in Nebraska against the United States under the Federal Tort Claims Act ("FTCA").
The government moved to dismiss on the ground that the action was time-barred under Louisiana law, where the cause of action arose. Under a Louisiana statute, La. Rev. Stat. Ann. § 9:5628, medical malpractice actions must be filed within one year after the negligent act or omission, or of discovery thereof, but in no event later than three years after the negligent act or omission occurred. Under the FTCA, there is a two-year limitations period, which accrues in medical malpractice actions when the claimant discovers or reasonably should have discovered the alleged malpractice.
Since a state's substantive law governs substantive issues that arise in actions under the FTCA, the government argued that the Louisiana statute was a substantive statute of repose, which would bar the claim because it was filed more than three years after the malpractice occurred. However, procedural issues in FTCA cases are governed by federal law, so the issue in Bagley was whether the Louisiana statute was substantive or procedural. If it is procedural, the federal limitations period would preempt it and allow the suit to proceed.
Noting that the Eighth Circuit Court of Appeals had not addressed the issue, the court observed that other courts have held that state statutes of repose govern the timeliness of FTCA claims, thereby displacing the FTCA's two-year limitations period. However, the court stated that Louisiana's statute was a "hybrid" law that contained both a one-year prescriptive period and a three-year repose period. The court concluded that federal law preempts Louisiana's one-year prescriptive period, as a procedural statute of limitations, so the claim was timely filed under the FTCA's two-year period of limitations.