Federal Tort Claims

Brien Roche

One question that comes up on a frequent basis is … Can you sue the federal government? Yes, the Federal Tort Claims Act is a U.S. law that allows for lawsuits against the U.S.A in certain cases.   Overall, the Act is a waiver of the immune status of the U.S.A. There are some cases where it remains immune.  Under the Act, state law is applied as to the basics of the tort claim.  The state law that is applied is the law where the injury occurred.

Before Filing Federal Tort Claims

A prelude to the filing of a federal tort claims case is the filing of a claim with the office involved.  That claim form must state the amount claimed. This amount binds the plaintiff. That is the plaintiff cannot get more than what is set forth in that claim. The administrative exhaustion requirements are found in 28 U.S.C. 2675. See also Estate of Van Emburgh v. USA.

If the injury is to a minor and bills are paid by the parent, then there is a need to file two claim forms. One is for the parent and one for the child. Call, or contact us for a free consult.

How Federal Tort Claims are Handled

These cases are tried without a jury in front of a U.S. District judge. The damages are decided by the judge.  At least one Circuit Court has stated that awards under the Federal Tort Claims Act should be governed by the highest award for like cases in that state to the extent the case involves losses that are not out of pocket.  There is no standard as far as the amount of out of pocket losses.   Losses that are not out of pocket are such things as pain and suffering.  Therefore in looking at the value of federal tort claims cases you must look at the highest award for non-economic damages from any state courts in that district in cases with like facts.

Feres

The U.S. can be sued for any personal injury, death or loss of property caused by the negligent or wrongful act or omission of a U.S. employee acting in the scope of employment under the same circumstances as where a private person would be liable. If the client is a member of the armed forces and is injured from activities incident to military service then the Feres doctrine bars these claims.
Legislation has been enacted to limit Feres. It created a limited exception to the Feres Doctrine “for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a Department of Defense health care provider,” provided that the “act or omission constituting medical malpractice occurred in a covered military medical treatment facility.” The term “Department of Defense health care provider” means “a member of the uniformed services, civilian employee of the Department of Defense, or personal services contractor of the Department [of Defense] …” while a “covered military treatment facility” includes certain military medical treatment facilities maintained by the Secretary of Defense.

While this certainly chips away at some of the unfortunate consequences of the Feres Doctrine, at least insofar as medical malpractice claims are concerned, the plain terms of its text do not extend to claims against the US for personal injury or death incident to the service of a member of the uniformed services that either: (a) occurred in a medical treatment facility other than a “covered military treatment facility,” such as one maintained and operated by the Secretary of Veterans Affairs; or (b) was caused by the medical malpractice of a civilian employee of the Department of Veterans Affairs or a personal services contractor of the Department of Veterans Affairs.

No Intentional Torts

The Federal Tort Claims Act expressly excludes many of the so-called intentional torts such as assault, battery, false imprisonment, and several others.  Investigative and law enforcement officers may be sued for intentional torts.

Many Factors To Review

In dealing with the U.S. on any type of federal torts claim case there are several things that you need to be aware of:

U.S. Employee

• The U.S. may assert that the person that hurt you is not in fact a U.S. employee. For instance, if you were injured as a result of the fault of a doctor at a VA hospital that doctor may be employed by a med school. To figure out who employs the doctor you have to request of the U.S. a copy of the contract through a FOIA request.  You should also contact the local U.S. Attorney’s Office. If the claim is against the VA then also request info from the Veterans Affairs (VA) Regional Council.   If the doctor or who ever employs her has a contract with the U.S. then you need to look at whether that doctor has duties as part of the contract other than strict medical duties, who withholds taxes and who pays to insure the doctor.  In other words it’s a control test. Who controls the doctor.
• If the doctor is not a U.S. employee then you can pursue that person under state law in state court. In the case of doctors the issue of control can be tricky because as a matter of ethics no one can control the judgment of the doctor. Hence the doctor must use his own judgment. If you are dealing with a state or local complex it may be there are U.S. employees working there. This is seen most often in regards to medical clinics. Certain clinics may operate at the local or state level but have within their ranks doctors who are U.S. employees. If your claim is against such a doctor your case will be a federal tort claims case.

Other Defenses

• Also the person you are suing may be an employee of the U.S. without any of the markings of such. That is you may not know you have sued an employee of the U.S. If the limitation has passed there may be a tolling of the statute. This tolling may give you the window of time to still pursue the claim against the U.S.
• In addition the U.S. may rely upon the discretionary function defense. Conduct of federal employees is generally discretionary. It is not discretionary if there is a rule that makes it mandatory. The U.S. may also raise a number of other technical defenses that may be a bar to your claim. You need to be aware of those.
• Suits under the Federal Torts Claim Act brought by a federal employee based upon the negligence of another federal employee may be barred under the Federal Employees Compensation Act.

Pre-Suit Claim

• Before you can sue the U.S. you have to submit your paper claim. That claim is filed with the office or agency that employs the wrongdoer. That office has six months to review the matter. If that office denies the claim, you may go ahead and file suit. If six months passes and the claim has not been denied then you may file suit. However you can wait until you get a denial if you wish. The claim must be filed on a Standard Form 95. Within that form you have to state the amount of damages you are claiming. You can seek no more damages at trial than what you set forth in your Standard Form 95. You should set forth as much detail as possible with all of the facts so the U.S. fully analyze the matter. Call, or contact us for a free consult.
• In a medical malpractice action the U.S. may assert that they can talk to U.S. employees who are health care providers of the plaintiff.   They may do so without you knowing.  To prevent that you should contact all of those doctors and nurses directly. You should tell them that the doctor-patient privilege applies. Cite any state law that applies. Tell them the client does not consent to any contact with the U.S. Attorney’s Office.  You should also invoke the Code of Ethics.  Likewise these people should be listed early in your filings under the rules. They should also be listed in your expert statements. Call, or contact us for a free consult.
• Out of an abundance of caution you should file a separate Form 95 for each claimant.  In wrongful death cases, each beneficiary should have their own Form 95 filed.
• If your claim involves both property damage and personal injury, both must be resolved at the same time. If you settle the property damage claim first, then you waive the personal injury claim.

Attempts To Settle

• Prior to the filing of suit the lawyer for the U.S. may request an informal interview of the plaintiff. It’s a judgment call as to whether you allow this.
• The agency has limits on what they can offer you to settle.  If your case is worth more than what they have it doesn’t make sense to let the case stay with that lawyer too long. Suit might as well be filed so that the Department of Justice can then review the matter.
• If the claim is denied then you have a right to request a second review. This only makes sense if you need more time to find witnesses or find an expert.  The request must go to the agency and must be made within 6 months of the claim being denied. That review will be done by a different lawyer within the same office.

Limitations

• The Federal Tort Claims Act has a two year statute of limitations. You must have your claim in the hands of the U.S. agency within two (2) years of the statute of limitations beginning to run. Simply mailing it within 2 years is not enough. Unlike state statute of limitations there is no special rule for minors. In addition, you may run into statutes of repose. A statute of repose is a statute generally at the state level that mandates an outside time frame within which suit has to be filed. The U.S. may rely on these statutes of repose.
• If the federal government denies your claim, then you must file suit within six (6) months of that denial.  That six (6) month period begins to run from the date of the mailing of that denial.  That is mandatory.

Law of The State

• Under the Federal Tort Claims Act the law of the state where the injury occurred is applied. In Virginia a claim under the Federal Tort Claims Act would thereby include the rule that a plaintiff in a medical malpractice case must have a written expert report before serving the suit papers. The failure to do that can result in dismissal of the lawsuit.
• In addition, caps on damages that may exist under state law may be applied.

U.S. Payments

• If you are covered under TRICARE or Medicaid or Medicare then there may be certain offset issues. These insurance plans are funded by the U.S. Therefore any bills paid under these plans may be an offset to the damages you can claim.

Venue and Trial

• Although venue may be proper in the district where the plaintiff resides, if that is not also the district where the injury occurred then the U.S. may remove the case to that latter venue.
• At trial your findings of fact and conclusions of law  are a good chance to inform the judge as to what your case is all about.  Cite the records that support your claim as to fault and damages.

For more information on medical malpractice see the other pages on this site.

If you have been injured by the fault of a U.S. employee, contact us. Brien Roche has been serving the legal needs of Fairfax, Va. and Washington D.C. area residents for over 40 years.

For more information about the Federal Tort Claims Act see the pages on Wikipedia.