Federal Tort Claims

Fairfax Injury Lawyer Brien Roche Addresses Federal Tort Claims

Brien Roche

One question that comes up frequently is … Can you sue the federal government? Yes, the Federal Tort Claims Act is a federal statute that allows for lawsuits against the federal government in certain instances.  Overall, the Act constitutes a waiver of immunity by the federal government. There are some instances where the immunity is not waived.  Under the Act,state law is applied as to the basic elements of the tort claim.  The state law that is applied is the law where the incident occurred.

Before Filing Federal Tort Claims

A prelude to the filing of a federal tort claims case is the filing of an administrative claim.  That administrative claim form is important because the amount set forth in that claim form binds the plaintiff, i.e. the plaintiff cannot recover more than what is set forth in the administrative claim.

If there is a parent/child situation where the injury is to a minor and medical expenses are paid by the parent, then there is a need to file two separate claim forms, one for the parent and one for the child.

How Federal Tort Claims are Handled

These cases are tried without a jury in front of a federal judge. The extent of recovery is a matter of discretion for the federal  judge deciding the case.  At least one Circuit, however, has stated that awards under the Federal Tort Claims Act should be governed by the highest award for similar cases in that same state to the extent that the award involves non-economic losses.  There is no particular criteria as far as the amount of economic losses that may be awarded.  Non-economic losses are such non-tangible losses as pain and suffering.  In evaluating federal tort claims cases it is therefore important to look at what is the maximum award for non-economic damages reported by any state courts in that jurisdiction involving cases that are factually similar.

The federal government can be sued for any personal injury, death or loss of property caused by the negligent or wrongful act or omission of a federal employee acting in the scope of employment under the same circumstances as where a private person would be liable.

The Federal Tort Claims Act expressly excludes many of the so-called intentional torts such as assault, battery, false imprisonment, and several others.

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

    • The federal government may assert that the individual that hurt you is not in fact a government employee. For instance, if you were injured as a result of the negligence of a doctor at a VA hospital it may well be that doctor that treated you is not an employee of the federal government but rather is an employee of a local university that has a contract with the Veterans Administration to provide medical services there. In order to make that determination you would have to request of the Veterans Administration a copy of the relevant employment contract through a FOIA request.  You should also contact the local U.S. Attorney’s Office and also the Veterans Affairs (VA) Regional Council to ask for this information.  If the provider has a contract with the government then you need to look at whether or not that provider has administrative duties at the federal facility, who withholds the provider’s taxes, who pays the malpractice premiums.  Overall it’s a control test to determine who controls that individual.  If the health care provider is an independent contractor then you can pursue that individual under state medical malpractice law.In the case of medical doctors they frequently are contractors because ethically the government cannot control their performance. That is the doctor must exercise independent judgment. In regards to medical claims it is important to also be sensitive to the possibility of a federal employee working within a local or state complex. This is seen most often in regards to medical facilities. Certain federally funded clinics operating as local or state facilities have within their ranks contractors who may be deemed to be federal employees for purposes of federal tort claims cases.
    • The federal government also may, in some instances, rely upon the so-called discretionary function defense which applies to decisions of administrators as to so-called policy issues. As to those types of decisions, the federal employee may not be liable.
    • Before you can sue the federal government under this Act, you have to first submit an administrative claim. That administrative claim is submitted to the federal agency and the federal agency then has six months to investigate the matter. If the federal agency then denies the claim, you may go ahead and file suit. If six months passes and the federal agency has not denied the claim, then at that point you may file suit but you can wait until you actually get a denial before being required to file suit. The administrative claim should be submitted on a Standard Form 95 and you need to be aware that within that form you have to state the amount of damages you are claiming and you can seek no more damages at trial than what you set forth in your Standard Form 95.
    • The Federal Tort Claims Act has a two year statute of limitations. Unlike state statute of limitations there is no special exemption for minors. In addition, you may run into potential issues dealing with what are called statutes of repose. A statute of repose is a statute generally at the state level that mandates an outside period of time within which suit has to be filed for certain types of claims irrespective of the nature of the claim. These statutes of repose are different than statute of limitations and, in some instances, the federal government may assert that even though your claim has not been denied by the federal agency the federal government can still rely upon the statute of repose as a defense and seek to bar your claim because you did not file suit within the time allowed by the statute of repose.
    • Under the Federal Tort Claims Act the so-called substantive law of the state where the injury occurred is applied. In Virginia a claim under the Federal Tort Claims Act would thereby incorporate the Virginia Rule that a plaintiff in a medical malpractice case must have a written expert certification before serving the suit papers upon the defendant. The failure to do that can result in dismissal of the lawsuit.
    • In addition, caps on damages that may exist under state law such as in Virginia may likewise be applied under the Federal Tort Claims Act. For instance, in Virginia, there is a cap on damages in medical malpractice actions.
    • If you are covered under TRICARE or Medicaid or Medicare then there may be certain offset issues. That is, these are insurance plans that are funded by the federal government and as such any damages paid under those plans may be an actual offset to the damages that you can claim.
    • In a medical malpractice action the government may assert the position that they can communicate with government employees who are health care providers of the client.  They may do so without notifying you.  To prevent that from happening you should contact all of those providers directly and tell them that you are asserting the doctor-patient privilege on behalf of the client, cite any applicable state law and tell them expressly that the client does not consent to any communications with the U.S. Attorney’s Office.  You should also invoke the American Medical Association Code of Ethics.  Likewise these witnesses should be identified early in your initial disclosure under the federal rules and also identified in your expert disclosures.
    • It’s not unusual during the administrative phase of these cases that the attorney for the federal agency requests an informal interview of the plaintiff.  It’s a matter of discretion for counsel as to whether or not that be allowed.
    • Your administrative claim must set forth a specific dollar amount.  It’s generally a good idea to set forth as much detail as possible so that the agency representative has all of the necessary facts to evaluate the matter.
    • If the claim is formally denied then you have a right to request reconsideration.  This probably only makes sense if you need more time for purposes of finding witnesses or finding an expert.  The request for reconsideration must go to the pertinent agency and must be made within 6 months from the initial denial.  That reconsideration will be undertaken by a different attorney within the same agency.
    • In terms of making your administrative claim it’s important that the agency receive the claim within two (2) years of the statute of limitations beginning to run.  Simply mailing it within 2 years is not sufficient.
    • Although venue may be appropriate in the particular federal district where the plaintiff resides, if that is not also the federal district where the incident occurred then be prepared for the federal government to remove the case to that latter venue.
    • In preparing your case for trial in federal court take advantage of any proposed findings of fact and conclusions of law.  This is a good opportunity to educate the judge as to what your case is all about.  In particular in regards to damages, it’s important to go ahead and cite whatever provisions there are in the medical records that support your claim for damages.
    • Typically the agencies as of 2017 only have settlement authority up to $300,000.00.  If your case is worth more than that then it probably doesn’t make sense to let the case stay with the agency too long, suit might as well be filed so that the Department of Justice can then evaluate the matter.

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

The federal government has obliged its citizens by allowing it to be sued for tortious acts of its employees but it has also raised a number of very technical defenses that may be a bar to your claim. You need to be sensitive to those in pursuing any such claim.

If you have been injured by the fault of a federal employee, contact us, Brien Roche has been serving the litigation 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.

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Federal Tort Claims

Contact Us For A Free Consultation

Contact Us For A Free Consultation