2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

limitations under the FTCA was not tolled due to Plaintiff’s status as a minor, it was tolled forpurposes surrounding Plaintiff’s timely assertion of her rights in the wrong forum coupled withher exercising due diligence. See id. The court held that Plaintiff diligently and vigorouslypursued her claim, albeit prior to realizing that she filed a state court action against a federaldefendant. See id. at 198. Evidence in support of the diligence included the fact that sheretained diligent counsel who requested and reviewed medical records, visited Defendant,corresponded with Defendant, performed a public records search on Defendant, retained experts,all of whom prepared expert reports. See id.The Government argued that several other courts of appeals from other circuits held thatthe equitable tolling rule would not apply in those situations where Plaintiff failed to performreasonable investigations that would have demonstrated that Defendants had been deemedfederal employees covered by the FTCA. See id. at 199. The court explained that even thedistrict court concluded that it was not clear whether Plaintiff knew or should have known thatDefendant received federal funds. See id. at 200 The court went on to explain that the Plaintiff’sbelief that Defendant was a state entity, was far from a baseless assumption as Defendantresembled a private clinic and except for FTCA purposes, the clinic and its employees wereprivate actors rather than federal employees. See id. Plaintiff’s attorney also performed a publicrecords search on Defendant which revealed it as an apparently private corporation. Plaintiff’scounsel’s many visits and discussions with Defendant also failed to provide any evidence thatthey were indeed a Federal entity. See id. at 200-01.The Government argued, inter alia, that the website for Defendant indicated that it is a“federally qualified health center.” See id. at 201. The court explained that although Defendantreceived grant support from the United States Department of Health and Human Services:See Id.York Health and its employees did not become employees of theother entities supporting them. With respect to the significance ornot of federal aid, we cannot conceive that anyone would contendthat on the basis of the common law application of the doctrine ofrespondeat superior the entities contributing to York Health’sfunding, including the United States itself, would be liable forYork Health’s employees’ malpractice. After all, if making acontribution to an entity could have such a consequence,contributions to many charities . . . would cease.The court further held that if Defendant was a federal employee, it would not be expectedto be receiving state and local government aid or charitable contributions. See Id. In conclusion,the court held that the record revealed no reasons which should have caused Plaintiff to inquireinto the federal status of Defendant. See Id. at 202.The court warned that its decision to apply equitable tolling to the FTCA claim camewith great caution and was an extraordinary remedy that was rarely applied, however, tolling91