What are the elements of a malpractice claim under the FTCA?
When medical malpractice occurs in a federal healthcare facility, such as a VA hospital, VA clinic, or any other type of healthcare facility that is purely federal, or is committed by any doctor, nurse, nurse midwife, or other healthcare provider who at the time is employed by the federal government, the injured party must strictly follow the provisions of the Federal Tort Claims Act (FTCA) to obtain compensation.
KEY PROVISIONS OF THE FTCA
- Administrative Notice of Claim: Before filing a lawsuit, you must start by filing a notice of the claim to the specific federal agency involved. For example, for a claim arising in a VA hospital or clinic, you file a claim with the VA. This is called an administrative claim, not a lawsuit.
- What to Include: The claim is submitted by filing a Federal FORM 95, along with supporting documentation for the claim. This can include submitting medical records, written opinions from experts if you have them, and any other relevant data which will help establish the malpractice that occurred AND show the injuries and damages being claimed.
- Wait for Decision: The Agency then has SIX MONTHS to consider your claim. During that time, the Agency may ask for more information, and failure to provide it may result in your claim being denied. At the end of the six months, the Agency may offer you a settlement, they may deny your claim, or they may ask for more information, and sometimes more time. You do not have to accept any settlement offer and you may try to negotiate for more. You don’t have to agree to an extension of time if you prefer not to.
- Filing Suit: If you have not settled your case with the Agency at the end of the six months, only then are you permitted to file a lawsuit in court. When filing suit, your defendant is not the Agency. Your suit may only be brought against The United States of America, and the suit will be defended by an Assistant United States attorney. You may not sue the individual healthcare providers who committed malpractice.
- Federal Judge to Decide Case: The suit must be filed in the United States District Court, where you will not be entitled to have your claim decided by a jury of your peers. Instead, your case will be tried in front of a federal district court judge, and he or she will decide if you have proved your claim of malpractice, and if so, the Judge alone will also decide how much you are entitled to in damages.
- Damages Limitations: Punitive damages are not available under the FTCA. Moreover, if your state has a law capping damages in malpractice cases, the federal Judge will apply those caps. Many states have malpractice caps, but Georgia does not.
- Attorney Fees: The FTCA caps the amount your attorney may charge for a fee at 20% of the recovery if it is settled before filing suit, and 25% of the recovery if achieved by settlement or trial after the suit is filed in court.
- Statute of Limitations: Your claim must be presented in writing to the appropriate federal agency within 2 years of when the claim accrues. There are no exceptions for minors’ claims. The statute of limitations stops running when you file the claim with the Agency, however, if at any time during the process the Agency sends you a written denial of the claim, you then have only six months as a new statute of limitations to file your claim in federal court.
If you believe you may have a case under the FTCA, do not delay in contacting a malpractice attorney experienced in FTCA cases. We would be happy to provide a free consultation.
To read the actual language of the FTCA click here.
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This site contains only general information and is not intended to constitute specific legal advice or establish an attorney/client relationship. Malpractice laws are constantly changing. If you think you may have a malpractice case you should promptly contact a lawyer experienced in handling malpractice cases.
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