Tort – FTCA – PHSA

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Where a plaintiff filed a wrongful death medical malpractice suit as the personal representative of the estate of a patient who died 11 days after receiving medical care at Lowell General Hospital, the lower court correctly allowed the substitution of the United States as the defendant and properly dismissed the case.

Affirmed.

“Plaintiff-Appellant Brad O’Brien (‘O’Brien’) filed a wrongful death medical malpractice suit as the personal representative of the estate of Melissa Allen (‘Allen’), who died eleven days after receiving medical care at Lowell General Hospital (‘LGH’ or ‘the Hospital’). The suit alleged that LGH and its providers — including Dr. Fernando Roca (‘Dr. Roca’) — were negligent in the care of Allen, acts which O’Brien contends resulted in Allen’s death. The district court dismissed the suit for failure to make timely presentment under the Federal Tort Claims Act (‘FTCA’). We affirm. …

“O’Brien makes four principal arguments on appeal. First, he contends that the district court erred in holding that the regulation promulgated by the Secretary did not violate the [Public Health Service Act (PHSA)]’s statutory scheme. Second, O’Brien argues that the district court erred in finding that deeming extended to Dr. Roca’s treatment of Allen. Third, O’Brien believes his time to file a claim did not begin accruing until he first spoke to his lawyer in September 2017. Lastly, O’Brien contends that, even if his claim accrued before he spoke with his lawyer, the FTCA’s Savings Clause saves his claim. We analyze each argument seriatim, concluding that the district court correctly allowed the substitution of the United States as the defendant and properly dismissed the case. We, thus, affirm.”

O’Brien v. United States (Lawyers Weekly No. 01-192-25) (25 pages) (Gelpí, J.) Appealed from a decision by Gorton, J., in the U.S. District Court for the District of Massachusetts. Adam R. Satin, with whom Andrew C. Meyer Jr. and Lubin & Meyer were on brief, for the plaintiff-appellant; Kevin Benjamin Soter, with whom Brett A. Shumate, Leah B. Foley and Dana Kaersvang were on brief, for the defendants-appellees (Docket No. 24-1844) (Sept. 11, 2025).

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