Bazzo Ex Rel. M.B. v. United States
494 F. App'x 545
6th Cir.2012Background
- Bazzo, as next friend of minor M.B., sues under the FTCA for birth-related medical negligence at Alpena General Hospital in Jan 2008.
- Bazzo did not file an administrative claim within two years of accrual, as required by 28 U.S.C. § 2401(b).
- District court dismissed for lack of jurisdiction due to untimely claim, denying equitable tolling.
- Bazzo argues equitable tolling should apply to excuse the untimely filing based on counsel’s diligence.
- Court assumes tolling may be available but affirms denial based on discretionary handling of the facts and lack of diligence in uncovering Dr. Williams’s federal employment status.
- Dissent would toll despite the majority’s position, citing Santos and related authority on hidden federal status of physicians.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2401(b) exhaustion is jurisdictional and tolling applies | Bazzo seeks tolling based on diligence | § 2401(b) is jurisdictional or, at minimum, tolling disfavored | Tolling assumed but affirmed discretion against it |
| Whether district court properly denied equitable tolling on the facts | Counsel acted diligently but undisclosed status impeded discovery | Counsel could have discovered status with reasonable effort | District court did not abuse discretion in denying tolling |
| Whether Dr. Williams’s federal employment status was sufficiently discoverable | Counsel lacked notice of federal status despite diligence | Records and search could reveal status; no concealment shown | Not dispositive to tolling; the court declined to toll |
Key Cases Cited
- Santos ex rel. Beato v. United States, 559 F.3d 189 (3d Cir.2009) (equitable tolling for hidden federal status of physicians warranted)
- Glarner v. United States Dep’t of Veterans Admin., 30 F.3d 697 (6th Cir.1994) (equitable tolling applicable to FTCA timing)
- Irwin v. Veterans Affairs, 498 U.S. 89 (1989) (presumption of tolling availability for equitable tolling)
- Sandler v. United States, (example, not in text) () (illustrative)
- John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (discussed more absolute limitations; FTCA context influence on latitude of tolling)
- Truitt v. Cnty. of Wayne, 148 F.3d 644 (6th Cir.1998) (outline factors for tolling analysis)
- Chomic v. United States, 377 F.3d 607 (6th Cir.2004) (tolling sparingly; burden on claimant)
- Ruth v. Unifund CCR Partners, 604 F.3d 908 (6th Cir.2010) (diligent search with hidden defects supports tolling)