MEDICAL MALPRACTICE CLAIMS AGAINST THE UNITED STATES: A Primer by Attorney Charles Jerome Ware

Charles Ware is a principal in the national law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors: "Still working. Still committed. Still here to make a difference".

Since medical malpractice laws can frequently be amended or revised on even a yearly basis, including both Federal and state laws, it is important that the reader speak with a knowledgeable attorney with questions and concerns about a claim, and to understand the current medical malpractice laws.

The Federal Tort Claims Act (FTCA): A Summary.

All medical malpractice claims against the United States must be filed under a statute called the Federal Tort Claims Act (FTCA).

The Federal Tort Claims Act (FTCA) of 1946 was enacted to compensate those who suffer injuries through the wrongful or negligent acts of federal employees. Before the FTCA, the government was basically immune from tortious claims. Through the FTCA however the government waived this sovereign immunity. Under the Federally Supported Health Centers Assistance Acts of 1992 and 1995, both of which arose from the FTCA, HRSA-supported medical centers are effectively federal employees and retain immunity from claims of medical malpractice arising within the scope of their medical duties. However, as the primary insurer of these HRSA-supported health centers the government assumes responsibility for all malpractice settlement claims arising from the malpractice of HRSA-medical providers.

Prerequisites to Filing a Malpractice Claim

Administrative Claim

Before a claimant can file a claim under the FTCA, he must first file it with the federal agency that employs the person responsible for the negligent act. The claim must contain the specific amount of damages requested as well as provide enough information for the agency to determine the claim's merits. Generally, the claim is filed on Standard For 95, which provides instructional information to ensure proper filing. The claim is then reviewed and the agency has six (6) months in which to admit or alternatively deny the claim. If the claim is denied or if the agency does not provide a decision within the statutory six months, the plaintiff can then file a complaint with the federal court. However, if the plaintiff does not wait for the administrative decision and files with a court too early, the court will dismiss because of lack of jurisdiction.

Preconditions

The FTCA applies only in situations where the negligent act was committed by a federal employee. It does not cover actions by a contractor or someone receiving governmental funding. This is true even if the act occurred on government property. Additionally, the broad language of the FTCA applies only to negligent acts and does not grant jurisdiction to claims filed under strict or absolute liability.

Burden of Proof and Discovery

In a medical malpractice case against the government, a plaintiff must prove through a preponderance of evidence that the alleged health care provider is responsible for the injury. As with any medical malpractice case, the plaintiff should provide expert testimony to show that the negligent doctor or clinic practiced below the requisite standard of care. Additionally, the attorney must investigate the incident by procuring the relevant medical records and documents as well as interviewing witnesses such as the tending doctor and nurses. The plaintiff may also be required to undergo an independent medical examination by a physician to verify the alleged injury.
The negligence is defined by the state in which it occurred.

Settlement

In the several months before a scheduled trial, the parties can enter into settlement negotiations.

Trial

If there is no agreed upon settlement, the case can then go to trial. A medical malpractice case brought under the FTCA is tried by a federal judge instead of a jury.

Damages

Under the FTCA, awarded damages are measured by the law of the place where the negligent act or omission occurred and is determined by applying the whole law of that jurisdiction. Punitive damages are not awarded.


[www.militarymedicalmalpracticeblog.com/4/federal-tort-claims-act-ftca; www.medicalmalpractice.com/resources/medical-malpractice/FTCA; bphc.hrsa.gov/ftca; CRS Report for COngress, "Federal Tort Claims Act"; 28 U.S.C.§§2671, 2680 (a); State Ins. Fund v. United States, 346 U.S.15 (1953); Dalehite v. United States, 346 U.S.15 (1953)]