Federal laws apply to every citizen in the United States. The United States Federal government has immunity; therefore, it may not be sued unless it has waived its immunity or consented to suit. Through the Federal Tort Claims Act (FTCA), the government waives its immunity for certain acts committed by its employees, including medical malpractice. The government can only be sued when its acts could have been performed by a private individual, thus barring any claims against conduct that is uniquely governmental.
This means a victim of medical malpractice in a Federal health care facility, such as a Veterans Administration (VA) hospital or a military hospital, can sue under the FTCA because the government has waived its immunity in these situations. Most active duty military personnel cannot sue the VA for medical malpractice; only military dependants and retirees are generally eligible. Those who are eligible still must comply with the FTCA’s requirements.
The specific requirements to file suit are important. If they are not followed, victims will not be able to compensate for their losses. The notice requirement states the claim must be filed within 2 years from the date that the claimant knew, or should have reasonably known, of the negligence. This 2-year period is a statute of limitations period. If the statute of limitations expires, the claim cannot be filed and money damages cannot be recovered. Furthermore, the claim must be in writing using Standard Form 95, and it must contain a demand for a “sum certain,” which means that a specific dollar amount must be stated. If the claim does not contain a “sum certain” a judge may deem it invalid.
When filing under the FTCA, the claim is against the United States or a specific administrative agency, not the provider or health care center directly. Once filed, the United States has six months to investigate the claim. If it has not made an acceptable settlement offer after six months, the claimant can then file a complaint in Federal court. The law requires the six month waiting period before suit can be filed against the United States in Federal court. The governmental agency will send a letter informing the claimant of its decision and possibly a settlement figure. The claimant has six months to reject the figure and file suit. If the claimant fails to do so within this six-month period, he or she has lost the right to collect damages.
FTCA attorneys usually work on a contingency basis which means that there is no fee unless the case is successful. The most the FTCA permits an attorney to recover is twenty five percent of the damages awarded.