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.
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