Law Offices Of Stephen A. Justino, P.C.

Can I sue Uncle Sam?

Whether it involves a collision with a military truck, or a "slip and fall" on federal property, or medical malpractice at the hands of a government doctor, negligence claims against employees of the United States of America arise under either the Federal Torts Claims Act ("FTCA") (28 U.S.C. sect. 2674), and the Military Claims Act ("MCA")(10 U.S.C. 2733).

Whether you can prevail on a such a claim depends on many factors, including your status at the time of the negligence; the status of the negligent person; and the place where the negligence occurred.

The most familiar, and arguably, the most unfair, exception to the FTCA, is known as the FERES (pronounced "fairies") doctrine, which takes its name from an old United States 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/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. The FERES doctrine has also been applied to bar cases by service members in which the negligence, such as being exposed to Agent Orange, 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. 

Military dependents are NOT barred by the FERES doctrine from bringing a claim for the physical injuries they, themselves, have suffered as a result of medical malpractice. Neither are military retirees, who may bring medical malpractice claims for injuries suffered after their retirement, even if the medical treatment they received was for a service connected injury.

The ability to prevail on a claim against the United States also depends on the status of the person committing the negligence. 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). 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 individually, rather than to file a claim against the government under the FTCA.

Your ability to prevail on a claim against the United States is even effected, in at least two important ways, by where the act(s) of negligence occurred. If the injury occurred in an overseas hospital, you are barred from making an FTCA claim by that statute's "foreign country" exclusion. That is true even though the hospital might be on a U.S. military base, and the negligent person was either a service member, or a DOD civilian.

If you were injured by a federal employee acting within the scope of his/her duties, while overseas, 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 major difference between the two (2) statutes is that if your MCA claim is denied, that law does not allow you to file a law suit against the United States, the way the FTCA does. Your second option is to bring a lawsuit directly against the negligent person, in the country where the negligence occurred. This approach has several obvious drawbacks, including the possible language barrier, and the fact that, generally speaking, the courts in most other countries are much less sympathetic to personal injury victims than are the courts in the U.S.

The second significant way in which the place where the tort occurred can affect your ability to bring an FTCA claim is due to the fact that FTCA actions are governed by the laws of the state where the negligence occurred. Negligence that may be actionable under the laws of Colorado, for example, may not be actionable under the laws of Texas. Therefore, it is possible that an injured person might be able to prevail on a claim if the negligence occurred at Fitzsimons Army Medical Center, in Colorado, but, not if the identical negligent act is committed at Brook Army Medical Center, in Texas.

Needless to say, if you believe that you have been the victim of medical malpractice at the hands of a federally employed health care provider, you should seek the advice of an experienced attorney, immediately. 

Required Notice of Claim

Under the FTCA, before you can file a law suit against the government, you have to file an administrative claim with the agency that committed the negligence. That claim has to be filed within two (2) years from the date you knew, or through the exercise of reasonable diligence, should have known of the negligence. This two (2) year period is known as the Statute of Limitations period. The claim must be made in writing, and it must contain a demand for a "sum certain." The "sum certain" requirement means that the claimant must ask for a specific dollar amount. If the claim does not contain a request for a "sum certain," it may be deemed to be invalid. 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. 

Administrative Action

If a valid claim is filed with the appropriate agency within the Statute of Limitations period, that agency has, by law, six (6) months from the date the claim is filed, in which to investigate and reach an administrative settlement of the claim. If you are satisfied that the government is investigating, and/or negotiating in good faith, that administrative time period will be automatically extended until the government takes "final administrative action" on your claim. "Final administrative action" means, either, that the claim is denied, via certified mail, or a final offer of settlement, via certified mail, is made to you. 

Filing a Lawsuit

If, after that initial six (6) month administrative time period has expired, the government has not taken "final administrative action" on your claim, you may treat that government inaction as a denial. At which point, you are entitled to file a law suit against the United States in Federal District Court. If you are dissatisfied with the "final administrative action," that is taken on your claim, you have six (6) months from the date of the certified letter, within which to file a lawsuit against the United States in Federal District Court.

If you do not file a law suit within that six (6) month time period, you loose your right to do so, forever.

FTCA cases are tried before a judge, without a jury. You are NOT entitled to a jury trial.

If you would like to discuss your FTCA matter with an experienced attorney, please contact us.