Summary of the Federal Tort Claims Act

Federal laws apply to all citizens of the United States. The federal government of the United States has immunity; therefore, you cannot be sued unless you have waived your immunity or agreed to sue. Through the Federal Tort Claims Act (FTCA), the government waives its immunity for certain acts committed by its employees, including medical malpractice. The government can only be sued where its acts could have been done by a private individual, so any claim against conduct that is solely government is excluded.

This means that a victim of medical malpractice at a federal health care facility, such as a Veterans Administration (VA) hospital or military hospital, can sue under the FTCA because the government has waived its immunity in these situations. Most active duty military personnel cannot sue the VA for medical malpractice; only military dependents and retirees are generally eligible. Those who are eligible must still meet FTCA requirements.

The specific requirements for filing a lawsuit are important. If they are not followed, the victims will not be able to compensate their losses. The notice requirement states that the claim must be filed within 2 years from the date the claimant knew, or reasonably should have known, of the negligence. This 2-year period is a statute of limitations. If the statute of limitations expires, the claim cannot be brought and money damages cannot be recovered. In addition, the claim must be in writing using the standard 95 form and must contain a demand for a “certain sum,” which means that a specific dollar amount must be stated. If the claim does not contain a “certain sum,” the judge can declare it invalid.

When filed under the FTCA, the claim is against the United States or a specific administrative agency, not against the health care provider or facility directly. Once filed, the United States has six months to investigate the claim. If you have not made an acceptable settlement offer after six months, the claimant may file suit in federal court. The law requires a six-month waiting period before a lawsuit against the United States can be filed in federal court. The government agency will send a letter informing the claimant of its decision and possibly a settlement figure. The plaintiff has six months to reject the figure and file the lawsuit. If the claimant does not do so within this six month period, he or she has forfeited the right to collect damages.

FTCA attorneys generally work on a contingency basis, which means there are no fees unless the case is successful. The most the FTCA allows an attorney to recover is twenty-five percent of the damages awarded.