VA Medical Malpractice

The First Amendment of the United States Constitution guarantees a citizen’s right to petition the government for redress of grievances. Between 1920 and 1946, there were more than 30 bills of financial remedies heard by Congress in the “private bill” system. Tiring of the way these private citizen claims clogged their calendars, Congress finally enacted the FTCA on August 2, 1946 as part of the Legislative Reorganization Act.

These six elements of a valid claim are:

1. must be against the United States,
2. for money damages,
3. for injury or loss of property, or personal injury or death,
4. caused by the negligent or wrongful act or omission of any employee of the Government,
5. while acting within the scope of his office or employment,
6. under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Federal courts lack subject matter jurisdiction over claims that do have these six elements. However, the government actor’s actions must be based on negligence and not be an intentional tort or be based on a theory of strict liability. Those types of claims are ineligible to be brought under the FTCA.

Claims against federal contractors do not fall under the FTCA unless the claim is based on a “nondelegable” duty. The actions of the federal employees must be within the scope of their official duties. It also does not cover torts committed by District of Columbia employees or territorial employees.

Because the tort is based on state law, any defense available under state law is also available to the federal employee defendant as a private person. That includes contributory negligence, comparative negligence, superseding cause, assumption of risk, recreational use statutes, and the statutory employee doctrine.

Other important points to know about the FTCA are that the law of the state where the tort has occurred or where the plaintiff is located is applied to the analysis of claim. So if the actions of a federal employee located in Montana causes the negligent act, the laws of Montana would be applied in the Montana federal court. If the plaintiff lives in Colorado, an individual may choose to file in Colorado federal court applying Colorado state law.

Congress has excluded claims arising incident to military service from the FTCA since they are covered by other legislative acts.

Before filing in federal district court, people must exhaust their administrative remedies first by filing a written claim with the agency that they believe has wronged them. The claim must state with specificity the monetary damages and identify the conduct that caused the damage. This must take place before the two-year statute of limitations expires of when the tort occurred. An agency is given six months to respond. If the federal agency doesn’t respond after six months, then a person may file their claim in federal court.

If the agency does respond and denies the claim, an aggrieved party has six months after denial of the claim to file in federal district court.

It’s critical to file the claim in the right court. FTCA claims may only be heard in the federal district court either where plaintiff resides or where the act or omission occurred.

Congress barred waivers of the FTCA in these instances:

1. Due Care exception of § 2680(a) provides that when a federal employee uses due care in carrying out a federal statute, regulation or policy specifically prescribing a course of action for an employee to follow, then a person’s claim is barred.
2. Discretionary Function exception of § 2680(a) provides an exception barring a FTCA claim when a federal employee performs a government action involving an element of judgment or choice that involves social, economic or political policy. It bars claims arising from flawed policies or negligent conduct.
3. Postal Exception bars suits in claims arising out of the loss, miscarriage or negligent transmission of letters or postal matter.
4. Collection of tax assessment or detention of property or goods by a police officer
5. Claims under the Admiralty or Public Vessels Act
6. Trading with the Enemy Act
7. Assault and battery by federal employees whether harm was intended, a joke ran afoul or plaintiff characterizes the act as negligent. (This doesn’t apply to medical malpractice.)Claims for damages caused by the imposition or establishment of quarantine by the United States.
8. These 11 intentional torts are barred and are listed by name
   
   1. False arrest
   2. Malicious prosecution
   3. Abuse of process (1-5 applies to federal law enforcement officers)
   4. Libel when defamation is a necessary element
   5. Slander when defamation is a necessary element
   6. Misrepresentation or deceit
   7. Interference with contract rights
   8. Invasion of privacy when based on false statements
   9. Commercial losses and personal injuries
   10. Invasion of privacy when based on false statements
   11. Commercial losses and personal injuries
9. Sec. 2680(i) bars claims arising from fiscal operations and monetary regulation.
10. Section 2680(j) bars claims for combatant activity.
11. Sec. 2680(k) foreign tort exception bars claims arising in a foreign country
12. The remaining exceptions bars claims arising from the Tennessee Valley Authority, the Panama Canal Company, a Cooperative Bank, a Federal Land Bank or a Federal Intermediate Credit Bank.

If you have been wronged by the actions of a federal employee, the attorneys at Whitcomb, Selinsky Law PC would love to share their expertise with you. Please call (303) 543-1958.