The Federal Torts Claims Act (FTCA) and Medical Malpractice

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The Federal Torts Claim Act (FTCA) is the law that allows the U.S. government to be sued in court (it’s technically a qualified waiver of the “sovereign immunity” doctrine that usually prevents lawsuits against a government).

Medical malpractice claims against the U.S. government follow the medical malpractice rules of the state where the lawsuit is taking place, however there are some procedures and rules that are unique to medical malpractice claims when the FTCA is involved. This article discusses what you need to look out for when the FTCA affects your medical malpractice claim.

What is the Federal Tort Claims Act?

In the U.S., all government entities are protected from lawsuits by a legal rule called “sovereign immunity,” also called “governmental immunity” when applied to smaller entities like municipalities.

Sovereign immunity basically means that the government can’t be sued regardless of fault. To alleviate the harshness of the sovereign immunity rule, all states and the federal government have some version of a “Tort Claims Act.” As with all tort claims acts, the FTCA permits the federal government to be sued. The FTCA does not permit every kind of lawsuit, but medical malpractice lawsuits against the government are permitted.

When Does the FTCA Apply to a Medical Malpractice Lawsuit?

The vast majority of medical malpractice lawsuits against the federal government will take place when an employee of a federally run hospital or other health care institution injures the patient while administering medical care. Some physicians working at federal hospitals are considered employees of the federal government — however, a physician can be, and frequently is, an independent contractor. If the physician working at the federal hospital is legally considered an independent contractor, neither sovereign immunity nor the FTCA apply, and the case is a “standard” medical malpractice claim (in other words, you don’t need to worry about the FTCA and its sometimes-strict procedural hoops).

The FTCA Has a Separate Notice Requirement and Its Own Statute of Limitations

Under the FTCA, the state medical malpractice laws that would normally apply are still in effect. However, the FTCA requires a plaintiff (the person suing) to give proper notice and a description of the proposed case to the federal agency that he or she intends to pursue an injury claim against. This notice of claim is required before the plaintiff is allowed to formally sue in court.

The plaintiff has two years to give notice to the proper federal agency, and the clock starts running on the day the plaintiff discovered — or had reasonable opportunity to discover — that he or she had sustained an injury or other harm that was caused by medical malpractice. The federal agency then has six months to respond to the notice (which usual comes in the form of a denial of liability) and the plaintiff then has another six months after that to sue the agency in court.

Damages in FTCA Medical Malpractice Actions

The same damages that are available in a standard medical malpractice action are also available in a FTCA medical malpractice action. This means that any state laws placing damage caps on medical malpractice cases also apply to a claim brought under the FTCA. One major exception to this rule is that punitive damages against the federal government are not allowed, and that rule applies to an FTCA case even in a state that would otherwise allow such damages in a medical malpractice case.