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Federal Tort Claim Statute of Limitations Not Tolled By Second Claim

Posted by Ted A. Schmidt | May 13, 2019 | 0 Comments

Redlin v United States, No. 17-16963 (9th Cir. April 23, 201`9 (J. Ikuta) (Appeal from Arizona District Court) http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/23/17-16963.pdf

SECOND NOTICE OF CLAIM UNDER FEDERAL TORTS CLAIM ACT FILED AFTER FIRST CLAIM DENIED IS NOT AN AMENDMENT OF FIRST CLAIM NOR A TIMELY REQUEST FOR RECONSIDERATION TOLLING STATUTE OF LIMITATION WHEN FILED OVER 6 MONTHS AFTER DENIAL OF FIRST NOTICE OF CLAIM

Plaintiff filed a claim with the Veteran's Administration for medical malpractice. The VA issued a final denial letter of the claim on July 14, 2015. Plaintiff filed a second claim on January 22, 2016 and then filed suite on August 10, 2016. The United States District Court dismissed the lawsuit as untimely and plaintiff appealed. The Ninth Circuit Court of Appeals affirmed.

A lawsuit under the Federal Torts Claim Act must be filed within 6 months of a denial of the notice of claim.  28 U.S.C. § 2401(b). Any amendment to a notice of claim must be filed before the claim is denied. 28 C.F.R. § 14.2(c). Any request for reconsideration of a denial of a notice of claim must be filed before the 6 month deadline to file suit, following the denial. Here the second notice of claim did not meet either deadline. 

Finally, plaintiff showed no extraordinary circumstances for the delay in filing suit or a request for reconsideration within the 6 month deadline to support equitable tolling.  Case dismissed.

Med mal veteran torts

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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