FEDERAL TORT CLAIMS
AGAINST VA MEDICAL CENTER
TODD S. HAMMOND
ATTORNEY AND COUNSELOR
AT LAW

PHONE: 503.365.0659
FAX: 503.365.
3823
EMAIL:
Todd@ToddSHammond.Com
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What is the FEDERAL TORT CLAIMS ACT?

The Federal Tort Claims Act - FTCA for short - is a
federal law that allows any individual to bring an
administrative claim - and later a lawsuit, if the
administrative claim is denied - against the United
States government for personal injuries.
Ordinarily the federal government is immune to
lawsuits under the legal doctrine of "sovereign
immunity." The FTCA is an exception to sovereign
immunity. The government can be sued when its
employees are performing a job that a private
employee generally performs in the same way -
such as providing health care. The FTCA does not
apply to conduct that is uniquely governmental,
that is, incapable of performance by a private
individual.

·       
 MEDICAL MALPRACTICE
    
Although the main focus of this discussion is on
medical malpractice at military and veterans
facilities
, the FTCA applies to all claims of federal
governmental negligence, such as being struck
by a government vehicle, or a "slip and fall" on
federal property. So the principles discussed here
apply to all FTCA claims.

·       
 COMPLEX LAW.

The FTCA is a complex law, and it underscores
the unique legal status of the people who receive
medical care from the federal government. Before
you can file a claim, several questions should be
answered in order to determine whether your
claim is even viable. The government's
willingness to be sued is actually limited by
several exceptions. Whether you can prevail on a
claim depends on several factors, including
o        
your status at the time of the negligence;
o        
the status of the negligent person; and
o        
the place where the negligence occurred.


Who can bring a claim under the Federal Tort
Claims Act for negligence at a military medical
facility?
·        Anyone not on active duty who suffered from
medical malpractice or inadequate care at a
military health care facility in the United States
may bring a claim
. The malpractice may have
occurred at a military hospital, base facility, clinic,
or a Veterans Administration facility.
o        Active duty military personnel cannot bring a
medical negligence claim. This is called the
"Feres" doctrine, after the U.S. Supreme Court
decision, FERES v. U.S, 340 U.S. 135 (1950).
Under the FERES doctrine, members of the United
States armed forces are barred from making a
claim against the United States for personal injury
or death arising "incident to service." Military
medical treatment received by a service member,
while he/she is on active duty has been held by
the courts to be "incident to service," and, thus
not actionable, even if that treatment was for a
purely elective procedure, and even if the
procedure was performed negligently.
o        The FERES doctrine has also been applied
to bar cases by service members in which the
negligence, such as being exposed to Agent
Orange, occurred while the service member was
on active duty, but, where the injury did not
become apparent until many years after the
service member had been discharged.
o        Military dependents are not barred by the
FERES doctrine from bringing a claim for the
physical injuries they, themselves, have suffered
as a result of medical malpractice. Nor are military
retirees barred by the FERES doctrine from
bringing a medical malpractice claim for injuries
suffered after their retirement, even if the medical
treatment they received was for a
service-connected injury.
o        Example #1: The wife of an active-duty
soldier gives birth at a military hospital. Due to
negligence by the doctors and nurses, the baby
suffers brain damage and the mother also suffers
damage to her reproductive system. The baby and
the mother both may make claims. The father may
not.
o        Example # 2: A woman on active military
duty gives birth at a military hospital. Due to
negligence by the doctors and nurses, the baby
suffers brain damage and the mother also suffers
damage to her reproductive system. The baby
may make a claim, and the mother can act on the
baby's behalf in bringing the claim. But the mother
may not make a claim for the injury that happened
directly to her, because of her active-duty status.



Who is the claim brought against?

The claim is brought against the United States
government.
Whether the government can be held
accountable for your claim depends on the status
of the person who committed the wrongdoing.
That person must be a federal employee who is
acting within the scope of his/her employment. (In
the military environment, federal employees will
either be military personnel, or DOD civilians).

NOTE: In many cases, however, the health care
providers in government hospitals are not federal
employees at all, but, rather, are independent
contractors. For example, Emergency Room
physicians are often independent contractors.
These doctors are not supervised by the
government, and are covered by their own
malpractice insurance. If the person who
committed the negligence was an independent
contractor, your remedy is to sue that person or
their agency directly, rather than to file a claim
against the government under the FTCA.
However, if the doctor is performing a 'personal
services' contract with the government, then the
FTCA may apply.


How do you file a claim under the Federal Tort
Claims Act?

Standard Form 95 is used to present claims
against the United States under the Federal Tort
Claims Act for property damage, personal injury,
or death allegedly caused by a federal employee's
negligence or wrongful act or omission occurring
within the scope of the employee's Federal
employment. The Form 95 must be completed and
state a claim for money damages in a sum certain
amount claimed for injury to or loss of property,
personal injury, or death. If a sum certain is not
specified in block 12d on the Form 95 or in
accompanying information, a submission cannot
be considered to be a valid claim.

Important note on amount claimed: A claimant
may not receive more than the amount claimed on
Form 95. For this reason, most lawyers advise
FTCA claimants that the amount claimed should
be a generous estimate. You can always recover
less than the amount claimed on Form 95, but not
more.

HYPERLINK TO
STANDARD FORM 95


What are the deadlines for filing a claim?

The completed Form 95 must be presented to the
appropriate federal agency
within two years after
the injured person becomes aware of the injury.

Important note on filing deadlines: The courts
have held that the limitations clock starts to run as
soon as the injury and its relationship to medical
care are known. The limitation time can expire
even if the claimant doesn't realize that the
doctors were negligent until more than two years
after the injury. For that reason, it is important to
investigate serious injuries promptly.
·        If a valid claim is not received by the
government within the Statute of Limitations
period, you have lost, forever, the right to make
the claim and to collect money damages.
However, before deciding you are too late,
consider consulting a lawyer to make sure. There
are some exceptions under the law that let injured
people file a claim more than two years after the
injury occurred.



Where should the claim be filed?

These claims must be presented to the federal
agency whose employee's conduct caused the
injury.
For example, any claim for injury at a VA
hospital must be filed with the Veterans
Administration. A claim for injury at a U.S. Navy
clinic must be filed with the Navy. Each agency
can tell you exactly where to send the claim.


What happens after the claim is filed?

Once the claim is filed with the agency involved,
the agency has six months to investigate the
claim and attempt to settle the case.
If the claim is
denied - or if the agency takes no definitive action
to settle or deny the claim within six months - the
claimant may at that point
file a lawsuit against the
United States in Federal District Court
. If you are
dissatisfied with the "final administrative action,"
that is taken on your claim, you can also sue. You
have six months from the date of the certified
letter from the government to file a lawsuit against
the United States in Federal District Court.
·        If you do not file a law suit within that six
months, you lose your right to do so, forever.
·        However, if the agency has not made a final
action, but has taken more than six months since
you filed your claim, you have the option of either
waiting for the final agency action or going ahead
and filing suit.
Pursuant to the provisions of the FTCA, FTCA
cases are
tried before a judge, without a jury. You
are not entitled to a jury trial.

Federal Statutes
·        28 USC ¤ 1346. United States as defendant -
Microsoft Word Document
·        CHAPTER 171 - TORT CLAIMS PROCEDURE
(28 USC 2671-80) - Microsoft Word Document