Jeanne Anne Steffin
Attorney-At-Law

"When deserving people need special legal help..."

Call: 626-235-1173
Email: jeanneannesteffin@gmail.com

The Federal Tort Claims Act

Pursuing a Claim for Medical Malpractice against the United States

            Until 1945, an individual who was injured because of negligence by the United States (such as medical malpractice by the VA or Military), could do nothing!!  The United States had sovereign immunity, and could not be sued.  In that year, Congress  passed the Federal Tort Claims Act which provided specific instances where an individual citizen could bring a legal action in Federal court for wrongs (“torts”) committed by employees of the US Government, within the course and scope of their employment,  that caused harm or injury.

            The instances where individuals had this power were very strictly limited, and the procedures by which such “FTCA” CLAIMS would be viable were clearly regulated...  For example:

            A FTCA Claim had to be presented to the Agency of the United States who had acted negligently no later than two years from the date of the negligence.

            The FTCA Claim needed to identify a “sum certain”, which is a specific dollar amount in damages.

            The FTCA Claim must be signed by the Claimant and needed to provide a “heads up” to the Agency as to the general basis for the Claimant’s concerns.

            The individual could not pursue any litigation until 6 months had passed from the receipt by the Federal Agency of the FTCA Claim, so as to allow the United States an opportunity to investigate and resolve the matter administratively.

            If the Agency recommended a settlement which was not acceptable to the Claimant, or if the Agency denied the FTCA Claim, or if the Agency had not made a recommendation after the passage of 6 months from their receipt of the FTCA Claim, the Claimant had the option to pursue the Claim for damages in Federal District Court where the injury occurred or where he was residing.

            The FTCA provided for a Bench (JUDGE) Trial with no Jury.

            The FTCA provided that the substantive law of the state where the negligence took place would be controlling in the litigation.

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• In trial, the plaintiff must show by “a preponderance of the evidence” (more likely than not) that a TORT (wrongful act) has been committed. 

PRIMA FACIE CASE OF NEGLIGENCE:

            In order that the Plaintiff succeed in his litigation, he must establish a prima facie case of negligence:

• DUTY: The Government had an obligation or duty to provide medical health care for the individual.
• BREACH OF STANDARD OF CARE:  The Government failed to conform with the standard of care in the private sector (private community), in that they did something, or omitted doing something that would have been done or would not have omitted by the majority of individuals presented with the same issues in the private community (Government Malpractice or Government Negligence. This could also apply to Military Malpractice (including Navy Malpractice, Army Malpractice, as well as VA malpractice.
• CAUSATION: The BREACH (failure to conform to the standard of medical care in the private community) was the direct and proximate cause of the injuries.
• Damages: The INJURIES resulting from the  BREACH  are identified as DAMAGE (LOSS); the damages are non economic, such as pain, suffering, anxiety, loss of comfort, society, consortium, et cetera, and economic, such as loss of earnings, future medical and health care costs, adaptive housing, aid and attendance, et cetera 

Establishing the Case

• To bring an action successfully, plaintiffs must present EVIDENCE before a FEDERAL JUDGE to show that the components of a TORT(VA malpractice, Military malpractice) exist, that there is a prima facie case of negligence.
• In order to do this the MEDICAL RECORDS must be reviewed by EXPERTS.

       EXPERTS are generally PHYSICIANS to evaluate the medical procedures and their effects, LIFE CARE PLANNERS and ECONOMISTS to determine how the actions of the Government defendant adversely affected the plaintiff, including the monetary damages.  The EXPERTS prepare reports and then appear as witnesses in DEPOSITION and at TRIAL

     While sometimes the Plaintiff’s attorney and the Government’s attorney will be able to negotiate a settlement of the case, when this cannot be done, there will be a TRIAL in front of the FEDERAL JUDGE, who will decide the case and determine the level of any MONETARY AWARD (VERDICT).

Jurisdiction of Federal Courts in FTCA Actions

     In order for this entire procedure to be implemented, the TORT must have occurred in the United States or a territory under the jurisdiction of a Federal Circuit Court.  Otherwise, the FTCA does NOT apply.  Instead, if the tort (Military Malpractice) occurs in FOREIGN COUNTRY, the Military Claims Act applies.

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