What is a FTCA medical malpractice claim?

If you are one of the millions of people who are eligible to receive health care in a federal health care facility, such as a military ("DOD") hospital, a Department of Veterans Affairs ("VA") hospital, or an Indian Health Services ("IHS") hospital, you should be aware of your legal rights in the unfortunate event that you are the victim of medical malpractice, or other government negligence.

The Federal Torts Claims Act ("FTCA") (28 U.S.C. sect. 2674), provides that the United States is liable for personal injuries, and medical malpractice "in the same manner as a private individual under like circumstances." In reality, the FTCA sets up several hurdles that you will have to leap over before you can even make it to the courthouse door. You will be required to prove your medical malpractice case as well as satisfy the technical procedures required to gain the right to sue the government.

What makes the FTCA medical malpractice case unique?

Although the primary focus of the following discussion is on federal governmental medical malpractice, 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, and the principles discussed below would apply to those claims as well. 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 many factors, including your status at the time of the negligence; the status of the negligent person; and the place where the negligence occurred.

The most familiar, and arguably, the most unfair, exception to the FTCA, is known as the FERES (pronounced "fairies") doctrine, which takes its name from an old United States Supreme Court decision, FERES v. United States, 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.

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. 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.

The ability to prevail on a claim against the United States also depends on the status of the person committing the negligence. 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). 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 individually, rather than to file a claim against the government under the FTCA.

Your ability to prevail on a claim against the United States is even effected, in at least two important ways, by where the act(s) of negligence occurred. If the injury occurred in an overseas hospital, you are barred from making an FTCA claim by that statute's "foreign country" exclusion. That is true even though the hospital might be on a U.S. military base, and the negligent person was either a service member, or a DOD civilian. If you were injured by a federal employee acting within the scope of his/her duties, while overseas, you have basically two options. The first option is to file a claim against the United States under the Military Claims Act (10 U.S.C. 2733). Administratively, the MCA, is very similar to the FTCA. The major difference between the two (2) statutes is that if your MCA claim is denied, that law does not allow you to file a law suit against the United States, the way the FTCA does.

Your second option is to bring a lawsuit directly against the negligent person, in the country where the negligence occurred. This approach has several obvious drawbacks, including the possible language barrier, and the fact that, generally speaking, the courts in most other countries are much less sympathetic to personal injury victims than are the courts in the U.S. The second significant way in which the place where the tort occurred can affect your ability to bring an FTCA claim is due to the fact that FTCA actions are governed by the laws of the state where the negligence occurred. Negligence that may be actionable under the laws of Colorado, for example, may not be actionable under the laws of Texas.

What to expect from a FTCA medical malpractice lawsuit

Required Notice of Claim

Under the FTCA, before you can file a law suit against the government, you have to file an administrative claim with the agency that committed the negligence. That claim has to be filed within two (2) years from the date you knew, or through the exercise of reasonable diligence, should have known of the negligence. This two (2) year period is known as the Statute of Limitations period. The claim must be made in writing, and it must contain a demand for a "sum certain." The "sum certain" requirement means that the claimant must ask for a specific dollar amount. If the claim does not contain a request for a "sum certain," it may be deemed to be invalid. 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.

Administrative Action

If a valid claim is filed with the appropriate agency within the Statute of Limitations period, that agency has, by law, six (6) months from the date the claim is filed, in which to investigate and reach an administrative settlement of the claim. If you are satisfied that the government is investigating, and/or negotiating in good faith, that administrative time period will be automatically extended until the government takes "final administrative action" on your claim. "Final administrative action" means, either, that the claim is denied, via certified mail, or a final offer of settlement, via certified mail, is made to you.

Filing a Lawsuit

If, after that initial six (6) month administrative time period has expired, the government has not taken "final administrative action" on your claim, you may treat that government inaction as a denial. At which point, you are entitled to file a law suit against the United States in Federal District Court. If you are dissatisfied with the "final administrative action," that is taken on your claim, you have six (6) months from the date of the certified letter, within which to file a lawsuit against the United States in Federal District Court.

If you do not file a law suit within that six (6) month time period, you forever lose your right to do so. 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.

As with any medical malpractice case, you should seek compensation for economic losses such as medical expenses (including those paid by your medical insurance provider) and loss wages for both the past and future. These are typically expenses easily supported by documents, such as payroll stubs and medical bills. More challenging are the losses for which there are no hard measure – a permanently impaired body or the diminished ability to enjoy life are losses that also deserve valuation. Both the economic losses and the non-economic injuries are legitimate elements of the damages for which you look to the government for compensation. Read more about damages.

For answers about your FTCA claim, call for a free consultation

We understand that each FTCA medical malpractice injury is as unique as each client. We approach each FTCA case from a fresh perspective and learn the detailed facts. Our ability to give the highest level of personal attention to each client is essential to our success. Chalat Hatten & Banker has cultivated knowledge and experience in determining the financial impact of medical malpractice. Consulting with economic impact analysts, medical specialists, and other healthcare professionals, we calculate what your negligent care means in terms of medical bills, lost wages, adverse living conditions, and psychological trauma. We make it a point to answer all the questions of our clients, and we address each concern in a professional and compassionate manner. Contact an experienced FTCA lawyer at our office today to discuss your options.