Entries from January 2008 ↓

Anyone who receives care at a military or VA hospital can’t avoid noticing that there are plenty of folks working in those facilities who are not government employees. Of course, that is easier to detect in a military hospital where active duty personnel usually wear military uniforms. However, even in VA hospitals where most everyone is a civilian, there are a large number of health care providers who are not government employees. Why is this important? Because if you are injured as a result of the negligence of an independent contractor, the United States is not responsible for any damages you may incur. In such a case you must sue the independent contractor and/or his employer to obtain compensation. This will usually complicate things significantly. Let me give you an example. Our firm recently represented the family of an active duty sailor whose wife received her care at a Navy primary care clinic in California. That clinic was operated by the Navy but staffed by civilian doctors and nurses provided by by a private company. Over the course of two years the patient was seen by numerous doctors and nurses for various primary care needs. No one, however, ever obtained a family history from the patient which would have notified them that the patient, who was 42, was at high risk for colon cancer because her father had died of the disease when he was 48. In fact, the patient on several occasions requested a colonoscopy because of her high risk, but her requests were always ignored. Her husband was eventually reassigned to Arizona where she presented to an Air Force hospital with abdominal problems. Tests demonstrated that the patient was suffering from Stage IV colon cancer. Despite treatment, the patient died about one year after being diagnosed.

Our firm filed a claim against the Navy under the Federal Tort Claims Act. Upon receipt of the medical records we determined that civilian doctors had treated this lady at the Navy clinic. We therefore filed a law suit against the doctors and the civilian company that employed them. When the six month FTCA administrative claims period had run, we joined the United States to our suit. This was all very tricky since California law provides a one year statute of limitation to bring a medical malpractice suit while the FTCA allows two years. Had we missed the California statute of limitations, the sailor and his family would have been barred from suing the civilian doctors.

As things turned out, the Navy blamed the civilians for not properly treating this patient and the civilians blamed the Navy. Both of them, of course, blamed the patient who was dead. After over a year of discovery, both the United States and the civilian company settled with the family.

This case demonstrates how important it is to pursue a claim in a timely manner and to secure the services of a firm which has the experience and resources to take on both the government and a large corporation simultaneously.

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”.

Generally any person who has been injured as a result of medical negligence occurring in a United States government health care facility with the exception of active duty personnel can sue the U.S. government for medical malpractice. This includes military dependents, military retirees, and veterans.

Our military medical malpractice attorneys have handled cases in virtually every area of medicine including birth trauma, surgical errors, and “failure to diagnose” (e.g., cancer, meningitis, stroke, heart disease, epidural abscess, abdominal aortic aneurysm, etc). We pride ourselves on accepting challenging cases that other firms have turned away because of their complexity.

Please view the Military Medical Malpractice Legal Network website for more information about how to file a medical malpractice claim.

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.

The Military Medical Malpractice Legal Network operates on a contingency fee basis. That means we get paid only if you recover. Should you obtain a recovery as a result of the claim, the law specifically designates how much the attorney can receive. That amount is 20% of the total recovery if a settlement is reached prior to filing a suit in federal court. If a recovery is obtained after suit is filed, attorney fees cannot exceed 25%. The costs incurred in prosecuting the claim will also be deducted from the final recovery. Our firm never requires payment of a “retainer fee”.