Entries Tagged 'Federal Tort Claims Act' ↓

I recently viewed a disturbing evening news program that reported the significant increase in suicides experienced by soldiers returning from combat duty in Iraq. One of the soldiers featured in the report had experienced symptoms of PTSD while on active duty which continued after his discharge. His attempts to receive treatment at the VA were unsuccessful. Eventually, his disease overwhelmed him and he committed suicide leaving behind a wife and three minor children. The report noted that after a great deal of effort his family was awarded VA benefits.

A question raised by this report, but not answered, is whether this veteran’s family was entitled to file a medical malpractice wrongful death claim against the government? The answer is, “It depends.”

First, it depends on whether denying appropriate mental health care to a patient with diagnosed PTSD is in fact negligent. Second, it depends on whether the family can establish that the failure to provide care was a direct and proximate cause of the veteran’s suicide. Finally, it depends on the state where the negligent care, or lack thereof, occurred.

Let me address the questions posed in reverse order. Under the Federal Tort Claims Act, the claimant must apply the law of the state where the negligent conduct occurred. Some states do not allow damage recovery for suicide. They consider suicide to be a form of contributory negligence or self-inflicted wound.

If the state law includes suicide in its wrongful death statute, then the family will have to prove by expert testimony that the veteran’s death was directly caused by the negligent provision, or negligent failure to provide, adequate mental health care which would have avoided this outcome. This is often difficult to do but will turn on the facts of each case.

Finally, the family will have to prove that the mental health care provided breached the standard of care. This is always a challenge in mental health cases. Unlike medical cases, where the treatment regimen is often quite clear once a diagnosis is made, psychiatric cases are far more complicated. Proving that the doctors treating the patient were negligent is never easy because treating such patients is never easy. As a consequence, claimants are well advised to consult with an experienced attorney before filing such claims under the FTCA. In the appropriate circumstance such cases can result in substantial recoveries for the family which suffers such a devastating loss.

What effect , if any, will the recent election have on the Federal Tort Claims Act? No one can say for certain; however, there is an outside chance the FTCA could be amended to allow active duty members to sue for medical malpractice. Let me explain. The only thing that prevents active duty members from suing the government for injuries sustained incident to military service is the Feres Doctrine which was enunciated by the Supreme Court in the Case of Feres v. United States. Because the FTCA is a statute created by Congress, it can be amended by Congress. If that were to occur, the Supreme Court would be bound by the amendment.

Twenty years ago Congressman Barney Frank of Massachusetts introduced a bill in Congress to amend the FTCA to allow active duty service members to sue for medical malpractice injuries occurring in “fixed military medical facilities.” Hearings were held and the House of Representatives passed the bill overwhelmingly. Unfortunately, the bill died in the Senate after intense lobbying against it by both the Justice Department and the Defense Department. Given the outcome of the recent elections, that result might change if the bill were to again come up for consideration.

When this bill was last considered, the Senate was controlled by the Republicans. The bill never got out of the Senate Armed Services Committee because Senator Strom Thurman, the Republican committee chairman, refused to bring it up for consideration. Even if it had been reported out of committee, it is unlikely it would have been passed by the Republican controlled Senate. It certainly would have been vetoed by President George H. W Bush. With a Democratic majority in both the House and Senate and a Democratic President, things might be different this time around. In addition, today there seems to be more empathy for soldiers injured as a result of medical malpractice. All these factors could result in the first change to the FTCA in over forty years.

If Congress were to allow soldiers to sue for medical malpractice, there certainly would be limitations applied to that right. First, soldiers would not be allowed to file claims for care received outside a “fixed medical facility” nor would claims be allowed for soldiers in a deployed status. There would also be a requirement that any military of VA disability benefits received as a result of a medical malpractice injury be offset against any FTCA recovery. These are all reasonable limitations that were included in the original legislation and would surely be included in any new bill. On balance, however, amending to the FTCA to allow soldiers to file such claims would be a fair extension of the law, and one which would be welcomed by all service members and their families.

In creating the FTCA, Congress specifically limited its coverage to the United States and its territories. Therefore, claims which arise out of injuries occurring overseas, i.e., Germany, England, Korea, etc., are not covered by the FTCA. However, they are covered by a statute called the Military Claims Act.

The major difference between these statutes is that under the MCA the claimant has no right to sue the United States in court. It may be unfair, but it is the law.

The Doctrine of Sovereign Immunity is a vestige of the common law which the United States adopted when it was created. That doctrine states that a citizen cannot sue the government without the government’s permission. Prior to 1946, no citizen could sue the United States government for any injury caused by a government employee. In that year, however, Congress passed the FTCA which provided for the partial waiver of its sovereign immunity. It did not include claims arising overseas. To fill in this gap, Congress passed the Military Claims Act which has its own special rules – one of which is that no claim can be filed in a federal district court.

In 1950 the Supreme Court decided a case called Feres v. United States in which it ruled that active duty personnel injured “incident to service” cannot file claims against the United States under the Federal Tort Claims Act. Receiving treatment at government facilities has been deemed an activity “incident to service”.

All medical malpractice claims against the United States must be filed under a statute called the Federal Tort Claims Act (FTCA). That law sets forth specific requirements that must be followed. It is therefore critical that the claim be carefully prepared by an experienced attorney because once filed it has significant legal consequences and can be changed only under very limited circumstances.

Six Month Waiting Period

Once the claim is filed, the United States has six months to investigate the claim. If at the end of six months the government agency has not made an acceptable settlement offer, the claimant is then allowed to file a complaint in federal court. Because suit is filed in federal court, not state court, it is essential that attorneys experienced in federal court be retained.

Proving the Case in Court

In order to successfully prosecute a medical malpractice claim, the party bringing the action (the plaintiff) must prove by a preponderance of evidence that the negligent act of a healthcare provider caused injury to the plaintiff. The entire burden of proof resides on the plaintiff; the government need not even present a witness. In order to prove its case, the plaintiff must present the testimony of qualified experts who support his position. Identifying experts and working with them is a major part of preparing your case for trial. Our firm retains only experts of impeccable character and the highest professional credentials. We do this to insure that when we get to trial, the United States will be unable to attack our case by attacking our experts.

The Discovery Process

Once suit is filed, the parties will then enter into an important period called “discovery.”

During discovery both sides have an opportunity to force the other side to produce documents and other relevant materials such as medical records, tax returns, social security records, etc. They also have the opportunity to interview relevant witnesses under oath in a process known as a deposition. Prior to your deposition, we will work closely with you to insure that you make the most effective presentation possible.

Finally, as part of the discovery process, an injured plaintiff may be required to undergo an independent medical examination to confirm the physical injuries alleged. The law allows the United States to identify a qualified medical expert and force the injured party to undergo a noninvasive examination. Should this occur, we will again prepare you for the examination.

Settlement Negotiations

Once discovery ends, there will be a several month delay before the actual trial. It is during this period that settlement negotiations are most likely to get underway. If settlement negotiations are unsuccessful, we will go to trial.

The Trial Process

Under the Federal Tort Claims Act, your case will be tried before a judge, not a jury. This is important since judges are less inclined to be swayed by emotion than are juries. To succeed before a judge, we must have the facts on our side and be able to prove those facts by a preponderance of the evidence. Remember, the burden of proof is on the plaintiff.

In a trial there is only one winner. That is why it is critical to have a rock solid case prior to going to court and the very best trial lawyers to present your case.

The major difference between these statutes is that under the MCA the claimant has no right to sue the United States in court.

The best way to insure a successful outcome is to hire an attorney experienced in handling FTCA cases. The FTCA has very specific requirements that must be met and you want to insure that your attorney has experience in dealing with this statute. In addition, knowing how the system works and who the players are can greatly enhance your receiving a recovery short of having to go to trial. If your case must go to trial, it will be tried in a federal district court. Your attorney therefore must have experience with federal procedure – something that is not common with all local lawyers. Finally, you pay no more for an experienced FTCA attorney since attorney fees are set by statue. Our FTCA attorneys have filed suit on behalf of FTCA clients in federal courts located in the following states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Minnesota, Nebraska, Nevada, New York, North Carolina, Ohio, Oklahoma, Tennessee, Texas, Virginia, West Virginia, Wisconsin, and Washington.