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Federal Tort Claims Act :: Government Benefits for Medical Malpractice
Potential benefits to veterans and their families who may have been injured by the malpractice/negligence of the United States are available through claims filed under the authority of the Federal Tort Claims Act (FTCA). Although the Federal Tort Claims Act (FTCA) does not provide a right to recover in all situations, it has been a fertile source of compensation for malpractice/negligence victims for over sixty years.
Federal claims practice is a complex area of law that engenders many questions. General answers to some of these questions are set forth below. They are intended merely to illuminate important general principles applicable in this area of practice. They do not constitute legal advice or supplant your obligation to obtain legal advice tailored to the facts of your potential claim.
One of the most misunderstood aspects of the FTCA is whether or not active duty personnel can file a claim. It depends on the nature of the claim. In 1950, the United States Supreme Court held that the United States is not liable under the Federal Tort Claims Act (FTCA) for injuries to service members if the injuries arose out of (or in the course of activity incident to) military service. This principle is known as “the Feres doctrine” and remains in effect today. As a practical matter, it means this: if you were on active-duty (and not on furlough) when you were injured by the malpractice/negligence of a military physician or other federal employee, your injuries will probably (but not always) be deemed “active-duty service-connected” and therefore Feres-barred. The good news is that active-duty service members have the same rights as civilians to recover federal tort compensation for negligently-inflicted injuries that are not considered to be active-duty service-connected.
Many military families believe that if they are negligently injured or the victim of malpractice/negligence by a federal employee, that they are not entitled to compensation for their injuries, “because you can’t sue the government”. This used to be true, and the federal government did not have to provide benefits to anyone injured by the negligence of its employees until 1946, when Congress enacted the Federal Tort Claims Act (FTCA) to provide a right to recover damages from the United States for injuries inflicted by the malpractice/negligence of federal employees.
If someone is injured by the malpractice/negligence of a military or VA physician or any other federal employee acting within the scope of his employment in the United States, a federal tort malpractice/negligence claim is a means of receiving compensation benefits for the injuries. A claim is distinct from a lawsuit. Before a lawsuit can be filed against the U.S., a claim must first be filed. Depending on a number of factors, a claim may lead to a lawsuit. If the claim is not successfully resolved in your favor, a lawsuit may be required. In assessing whether to pursue this remedy, you should consult an attorney familiar with this area of practice.
Time Limit for Filing Benefit Claims with the U.S.
Federal law requires that your claim be filed within two years of the date you knew or should have known of the injury and its cause. State law limitations periods do not apply. Consequently, if the injury was to a minor or incompetent person, you may not rely on state statutes permitting a minor or incompetent person to postpone the filing of suit until he or she becomes an adult, or the incompetency is removed. Failure to take steps to promptly investigate the potential claim may be a valid reason for the United States to deny your claim.
Injuries in a Foreign Country
What if a federal employee in a foreign country injures you? The Federal Tort Claims Act (FTCA) does not apply to claims arising in foreign countries. However, you have a right to file a claim for compensation benefits under a companion statute, the Military Claims Act. You may not sue the United States if that claim is denied. Because the United States has a duty to exercise good faith in resolving your claim, well-documented military claims are often settled, and always without the expense, inconvenience and uncertainties associated with litigation.
Tort Compensation v. Disability Benefits
The right to receive federal tort compensation is entirely distinct from the right to receive administrative benefits under the Veterans’ Benefits Act or similar federal disability and death benefit statutes. Your entitlement (if any) to administrative disability and/or death benefits does not depend on whether the injury was negligently inflicted. Where available, these benefits are usually far less ample than a federal tort settlement or award.
About the Author:
Walter A. Oleniewski is a former claims officer, and Assistant Chief of the General Claims Division of the U.S. Army Claims Service, a trial lawyer at the United States Department of Justice and supervisor of all medical malpractice litigation filed against the United States, all military services, and the Veterans Administration. He has written and taught extensively on medical malpractice, and is a retired LTC from the Army Judge Advocate General's Corps. He currently devotes his practice to representing individuals and families who have suffered injuries due to military and VA medical malpractice.
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