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Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) provides a limited waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of their employment. The FTCA covers actions for monetary claims for injury, property loss or death caused by the negligent or wrongful act or omission of any employee of the federal government. The FTCA applies to most torts, including medical negligence. Thus, the FTCA provides that the United States is liable for medical malpractice in the same manner as a private individual under like circumstances. Under the FTCA, any malpractice action filed against a physician employed by the United States must be filed against the government, not against the individual physician. The government is substituted as the defendant and it defends the claim.

In order to file a medical malpractice claim against a government employee, however, plaintiffs are required to comply with the requirements of the FTCA. Before an action may be filed under the FTCA, the plaintiff is required to file an administrative claim with the federal agency that employs the physician or health care provider who committed the alleged malpractice. The administrative claim must include sufficient information to allow the federal agency to investigate the claim. The claim must also include the amount of damages sought. Once the federal agency receives the claim, it has six months to admit or deny it. If the agency admits the claim, it will make a monetary offer to the plaintiff. The plaintiff can choose to accept or deny it. If the agency denies the claim or fails to act on the claim within the six-month period, the plaintiff can file a complaint against the government under the FTCA. Likewise, if the plaintiff rejects an offer by the agency, it can file a complaint. Once the agency issues a denial of the claim, the plaintiff must file any complaint within six months of the denial or the complaint will be time barred.

The FTCA applies only to acts or omissions of an employee of the government “while acting within the scope of his office or employment.” Thus, an action under the FTCA against a health care provider for medical malpractice must be based on medical care given within the scope of the provider’s government employment. Likewise, a claim cannot be brought against the government for claims alleging assault and battery by a health care provider.

One exception to the FTCA is the Feres doctrine. Under the doctrine, claims cannot be brought under the FTCA for medical malpractice that occurs incident to military duty. Thus, an active service member who suffers injuries as a result of medical malpractice by a government employee cannot bring suit against the government. This bar applies even if the service member was not on duty at the time the alleged malpractice was committed.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.

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