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The Federal Tort Claims Act
What is the Federal Tort Claims Act?
The Federal Tort Claims Act – FTCA for short – is a federal law that allows any individual to bring an administrative claim – and later a lawsuit, if the administrative claim is denied or not settled successfully – against the United States government for personal injuries. Ordinarily the federal government is immune to lawsuits under the legal doctrine of “sovereign immunity.” The FTCA is an exception to sovereign immunity. The government can be sued when its employees are performing a job that a private employee generally performs in the same way – such as providing health care or driving a vehicle. The FTCA does not apply to conduct that is uniquely governmental, such as discretionary decisions about how to spend government money or how to enforce government laws and regulations.
- General. The FTCA applies to all claims of federal governmental negligence. This includes mistreatment at government-run health care facilities, and other kinds of negligence, such as being hit by a government vehicle (a mail truck, for example), or a “slip and fall” on federal property. So the principles discussed here apply to all FTCA claims.
- Important Exceptions. The FTCA has some important loopholes or exceptions that apply to patients who receive medical care from the federal government. These are discussed in more detail below. But for starters, you need to know that a viable FTCA claim for government-delivered health care can only be brought if: (1) The victim was not an active duty service person at the time of the injury; (NOTE: Active-duty service members can file a claim through a different process ) (2) The care was delivered by government employees, not independent contractors; (3) The care occurred at a facility in the United States. (See discussion below about claims for treatment at U.S. military facilities in foreign countries, which can be brought under the Military Claims Act.)
Who can bring a claim under the Federal Tort Claims Act for negligence at a military or other government health care facility?
Anyone not on active duty who suffered from medical malpractice or inadequate care at a U.S. government health care facility in the United States may bring a claim. The malpractice may have occurred at a military hospital, base facility, clinic, a Veterans Administration facility, or a federally supported clinic.
- Active duty military personnel cannot bring a medical negligence claim for care at a military facility. This is called the “Feres” doctrine, after the U.S. 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 or 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. Congress has considered amending this law to give active duty service members some legal recourse, but as of this writing, the Feres bar still applies.
- The FERES doctrine has also been applied to bar claims by service members in which the negligence, such as being exposed to Agent Orange in Vietnam, 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.
- While the Feres Doctrine still bars medical malpractice claims in federal court, with the passage of the 2020 National Defense Authorization Act (NDAA), active-duty service members can now file a medical negligence claim with the Department of Defense. This is an administrative claim only; there is no right to sue in federal court if you are dissatisfied with the government’s administrative response.
- However, family members of active duty military personnel – such as spouses and children — can bring claims for injuries they have suffered as a result of mistreatment at a government facility. Military retirees also can bring claims for malpractice as long as the treatment they received came after retirement from active duty (even if the post-retirement treatment was for a service-connected injury).
- Example #1: The wife of an active-duty soldier gives birth at a military hospital. Due to negligence by the doctors and nurses, the baby suffers brain damage and the mother also suffers damage to her reproductive system. The baby and the mother both may make claims. The father may not.
- Example # 2: A woman on active military duty gives birth at a military hospital. Due to negligence by the doctors and nurses, the baby suffers brain damage and the mother also suffers damage to her reproductive system. The baby may make a claim, and the mother can act on the baby’s behalf in bringing the baby’s claim. But the mother may not make a claim for the injury that happened directly to her, because of her active-duty status.
What about claims against federally supported clinics and free clinics?
Health clinics that receive funding from the U.S. Department of Health and Human Services are eligible for malpractice coverage through the Federal Tort Claims Act. This means that any victim of malpractice at one of these clinics MUST comply with the claims requirements of the FTCA as spelled out on this page. The doctors and nurses involved may not have actually been employees of the government when they were rendering the negligent care, but under federal law they are “deemed” to be government employees, which immunizes them from personal responsibility for the malpractice and makes the U.S. government financially responsible. The laws that apply are the Federally Supported Health Centers Assistance Act, 42 U.S.C. 233(g)-(n), and the Patient Protection and Affordable Care Act, which extended this malpractice coverage under the FTCA to health care professionals who volunteer at free clinics, and also to free clinic board members, officers, employees, and individual contractors.
Who is the claim brought against?
The claim is brought against the United States government. Whether the government can be held accountable for your claim depends on the status of the person who committed the wrongdoing. 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).
NOTE: 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 or their agency directly, rather than to file a claim against the government under the FTCA. However, if the doctor is performing a ‘personal services’ contract with the government, then the FTCA may apply.
How do you file a claim under the Federal Tort Claims Act?
Standard Form 95 is used to present claims against the United States under the Federal Tort Claims Act for property damage, personal injury, or death allegedly caused by a federal employee’s negligence or wrongful act or omission occurring within the scope of the employee’s Federal employment. The Form 95 must be completed and state a claim for money damages in a sum certain amount claimed for injury to or loss of property, personal injury, or death. If a sum certain is not specified in block 12d on the Form 95 or in accompanying information, a submission cannot be considered to be a valid claim.
Important note on amount claimed: A claimant may not receive more than the amount claimed on Form 95. For this reason, most lawyers advise FTCA claimants that the amount claimed should be a generous estimate. You can always recover less than the amount claimed on Form 95, but not more.
What are the deadlines for filing a claim?
The completed Form 95 must be presented to the appropriate federal agency within two years after the injured person becomes aware of the injury.
Important note on filing deadlines: The courts have held that the limitations clock starts to run as soon as the injury and its relationship to medical care are known. The limitation time can expire even if the claimant doesn’t realize that the doctors were negligent until more than two years after the injury. For that reason, it is important to investigate serious injuries promptly.
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. However, before deciding you are too late, consider consulting a lawyer to make sure. There are some exceptions under the law that let injured people file a claim more than two years after the injury occurred.
Where should the claim be filed?
These claims must be presented to the federal agency whose employee’s conduct caused the injury. For example, any claim for injury at a VA hospital must be filed with the Veterans Administration. A claim for injury at a U.S. Navy clinic must be filed with the Navy. Each agency can tell you exactly where to send the claim.
What happens after the claim is filed?
Once the claim is filed with the agency involved, the agency has six months to investigate the claim and attempt to settle the case. If the claim is denied – or if the agency takes no definitive action to settle or deny the claim within six months – the claimant may at that point file a lawsuit against the United States in Federal District Court. If you are dissatisfied with the “final administrative action,” that is taken on your claim, you can also sue. You have six months from the date of the certified letter from the government to file a lawsuit against the United States in Federal District Court.
- If you do not file a law suit within that six months, you lose your right to do so, forever.
- However, if the agency has not made a final action, but has taken more than six months since you filed your claim, you have the option of either waiting for the final agency action or going ahead and filing suit.
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.
What if the injury occurred outside the United States?
Once the claim is filed with the agency involved, the agency has six months to investigate the claim and attempt to settle the case. If the claim is denied – or if the agency takes no definitive action to settle or deny the claim within six months – the claimant may at that point file a lawsuit against the United States in Federal District Court. If you are dissatisfied with the “final administrative action,” that is taken on your claim, you can also sue. You have six months from the date of the certified letter from the government to file a lawsuit against the United States in Federal District Court.
- If you do not file a law suit within that six months, you lose your right to do so, forever.
- However, if the agency has not made a final action, but has taken more than six months since you filed your claim, you have the option of either waiting for the final agency action or going ahead and filing suit.
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.
What if the injury occurred outside the United States?
If you were injured by a U.S. government employee acting within the scope of his/her duties, while in a foreign country, 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 main difference is that the FTCA lets you take the government to federal court if your claim is denied or you are unsatisfied with the settlement offered by the government, but the MCA gives you no access to court. You must accept whatever final offer the government agency makes.
- Your second option is to bring a lawsuit directly against the negligent person in the country where the negligence occurred. This usually does not work well. The courts in many countries are less receptive to injury victims than American courts, plus you have language and cultural barriers.
Where can I learn more?
View a list of the important cases on the Federal Tort Claims Act, establishing the right of individuals to sue the federal government for certain forms of malpractice or negligence.
Here are some regulations, desk books and other materials particularly useful to the lawyer dealing with a Federal Tort Claims Act case. Be sure to contact the appropriate federal agency where the claim is filed for local regulations and guidelines.
- Handbook (very detailed and extensive!) – PDF
- Deskbook – Army Publication (JA 241) on FTCA – PDF
- Army Pamphlet 27-162 – Claims – PDF
- Army Regulation 27-20 – Claims – PDF
- Damages in FTCA – PDF
- Employees in FTCA – PDF
- Exclusions in FTCA – PDF
- Negotiations High Dollar Amounts in FTCA – PDF
- Medical Malpractice Facts/Investigation – PDF
- 2001 Claims Course Handouts US Army | Damages – PDF
- 2001 Claims Course Handouts US Army | FTCA Exclusions – PDF
- 2001 Claims Course Handouts US Army | Liability – PDF
- 2001 Claims Course Handouts US Army | Medical Malpractice Investigation – PDF
- 2001 Claims Course Handouts US Army | Negotiations – PDF
Federal Statutes
Additional Resources
