Federal Tort Claims Act For Medical Malpractice
While most of what we help with usually deals with Illinois law, there are times when Federal law applies to residents of Illinois. This page provides an overview of the Federal Tort Claims Act as it relates to medical negligence. If you have any questions please let us know.
The United States Federal government has sovereign immunity – that is, it may not be sued unless it has waived its immunity or consented to suit. Through the Federal Tort Claims Act (FTCA), the government has waived its immunity to a limited extent when a Federal employee commits a negligence act, such as medical malpractice. The government can only be sued when its acts could have been performed by a private individual, thus barring any claims against conduct that is uniquely governmental.
What this means for you is that if you are the victim of any type of medical malpractice in a Federal health care facility, such as a Veterans Administration (VA) hospital or a military hospital, you can sue it under the FTCA because the government has waived its immunity in this situation. It should be noted that most active duty military personnel cannot sue the VA for medical malpractice; only military dependents and retirees are generally eligible. However, those who are eligible still must comply with the FTCA’s requirements – such as its notice requirement – in order to sue.
The notice requirement is that you must file your claim within 2 years from the date that you knew, or should have reasonably known, of the negligence. This 2-year period is a statute of limitations period. Furthermore, the claim must be in writing using Standard Form 95, and it must contain a demand for a "sum certain," which means that you have to ask for a specific dollar amount.
The notice requirement is important, and if you fail to comply, your case will be dismissed. If your claim does not contain a specific dollar amount – a "sum certain" – a judge may deem it invalid when you try to sue. If the 2-year statute of limitations period expires before you file a valid claim, you have lost the right to collect money damages forever.
You can’t file a claim against the provider or the health care center directly; you must file the claim against the United States, or a specific administrative agency. Once it is filed, the United States has six months to investigate it. If it has not made an acceptable settlement offer after six months, you can then file a complaint in Federal court. The law requires you to wait for this final administrative action before you can file a lawsuit against the United States in Federal court. Once you receive a letter from the governmental agency informing you of its final decision, including a possible settlement figure, you have six months to reject it and file suit. If you fail to do so within this six-month period, you have forever lost your right to collect money damages.
When it comes to hiring an attorney for a FTCA case, you want a lawyer that has tremendous experience with these cases and a track record of success. If you would like our help in finding such a law firm please contact us. Every FTCA attorney we recommend works on a contingency basis which means that there is no fee unless the case is successful.
As part of our service we try to speak in "plain English." In not so plain English you will find below a summary of the FTCA law itself.
28 U.S.C. § 2674 – Federal Tort Claims Act
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
28 U.S.C. § 2675 – Jurisdictional Pre-Conditions to Suit
(a)An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.