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Partner Mark Sternlicht published in Trial Briefs
January 20, 2015
Partner Mark Sternlicht was published in Trial Briefs: “An Introduction to the Federal Tort Claims Act”. The article shares Sternlicht’s extensive experience and knowledge in bringing law suits against the federal government in instances of personal injury, property injury, wrongful death or medical malpractice. The Act is federal law which is very relevant to Cumberland and Hoke Counties in light of the presence of Fort Bragg, Womack Army Medical Center and the Veterans Hospital. Read “An Introduction to the Federal Tort Claims Act.” Trial Briefs, North Carolina Advocates for Justice. December 2014 below.
An Introduction to the Federal Tort Claims Act
The Federal Tort Claims Act (FTCA)1 is a partial legislative waiver of the United States’ sovereign immunity from liability for the negligence of federal employees. Under the Act, the government may be held liable for money damages “for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. . . .”2 Before bringing FTCA claims, attorneys must address several threshold issues to determine whether the Act applies. If resolving these issues supports a valid FTCA claim, the next step is to file an administrative claim.3 If the United States denies the claim or fails to settle it within six months, the Act authorizes suing in federal district court,4 where the case will be tried by a judge without a jury.5 FTCA administrative claims and suits must comply with certain procedures and follow the substantive law of the state where the negligence of the government employee occurred. These requirements can be traps attorneys must avoid to provide successful representation in FTCA cases. This article will highlight common issues and provide a starting point for case-specific research.
Applicability of the FTCA
The government may be held liable under the FTCA for the negligence of federal employees “in the same manner and to the same extent as a private individual under like circumstances. . . .”6 This waiver of sovereign immunity is limited, however, because the Act excludes certain claims from its scope, including claims arising out of acts involving discretionary functions of government employees; mail delivery; certain intentional torts; claims arising out of combatant activities of the military during war; and claims arising in a foreign country.7 Federal employees injured in their employment have an exclusive remedy under the Federal Employees’ Compensation Act and cannot recover under the FTCA.8
The Supreme Court created an exception that bars active duty military members from recovering when “the injuries arise out of or are in the course of activity incident to service.”9 In the Fourth Circuit, despite this exception, military members can bring FTCA claims for consequential damages for non-physical injuries that result from injuries to civilian dependents.10 In this circuit, parents who are service members may bring FTCA claims on behalf of their birth-injured children and for the parents’ economic damages.
Discretionary Function Exception
The discretionary function exception is the “most important” FTCA exception.11 It provides that the FTCA does not waive sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”12 The discretionary function exception also precludes FTCA claims that are based on the validity of legislation or discretionary administrative action, such as claims arising out of federal agencies’ regulatory activities.13
To determine whether conduct falls within the discretionary function exception, courts “must first decide whether the challenged conduct ‘involves an element of judgment or choice.’”14 If a federal statute, regulation, or policy prescribes conduct an employee must take, the exception does not apply because “the employee has no rightful option but to adhere to the directive.”15 If the conduct involves discretionary judgment, the court must then determine “whether that judgment is of the kind that the discretionary function exception was designed to shield, . . . [i.e.,] based on considerations of public policy.”16
Employee or Independent Contractor
FTCA claims can arise only from federal employees’ negligence. The government has no liability for independent contractors’ negligence.17 If, however, the government had the authority to physically supervise the conduct of an independent contractor, the contractor might be an agent or servant of the government, and the independent contractor exception would not apply.18 The government’s right to inspect a contractor’s work or demand compliance with specific contractual terms that implement federal objectives is not sufficient to make the government liable for the contractor’s actions.19
Uncertainty about whether a negligent actor was a government employee or independent contractor often arises when a patient was injured in a military healthcare facility, a Veterans Affairs hospital, or certain federally funded health centers.20 To find out whether healthcare providers were employees or independent contractors, attorneys can ask the agency where the healthcare providers worked or file a Freedom of Information Act request for employment documents and status. If the two-year FTCA statute of limitations21 (note there is no tolling provision for minors’ claims) is close, it is advisable to file an administrative claim and ask the government’s claim representative for employment documents and the status of negligent actors. If the state statute of limitations is three years, there will be time to file a state action within the statute of limitations if the provider was not a government employee. In a wrongful death case, however, the North Carolina statute of limitations is only two years, so if the employment status of the provider cannot be determined before the FTCA and state statutes of limitations run, the safe course is to file an administrative FTCA claim and a lawsuit to cover the possibilities that the provider was an employee or an independent contractor.
Administrative Claims under the FTCA
After an attorney determines that an injured party is eligible to bring an FTCA claim, the injurious conduct falls within the Act, and a government employee was negligent, the next step is to file an administrative claim by submitting a Standard Form 95 (SF 95) to the government office designated to receive claims for the agency that employed the negligent actor. An administrative claim is a prerequisite to suing under the Act.22 A claim is presented as required by the Act when the SF 95 is “received by the appropriate agency.”23 If the two-year deadline is close, hand delivery will avoid the possibility of a mail mishap.
The SF 95 has spaces for claim details. While a claim is pending, the government may require the submission of supporting evidence or information and require the claimant to submit to physical or mental examination by a government physician.24 Provision of the information described in the C.F.R. with the SF 95 may enhance the credibility of the claim.
The monetary amount requested on the SF 95 must be “a sum certain. . . .”25 The amount stated on the SF 95 limits the amount that may be sought in a suit, “except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.”26
A claimant may submit an amended claim before final agency action or before the claimant exercises the option of suing if the agency has not denied the claim within six months from filing the claim.27 Timely submission of an amended claim gives the government six more months to make a final disposition of the claim and extends the claimant’s option to sue before a denial for six months.28
Exhaustion of Administrative Remedies
To exhaust administrative remedies, a claimant must allow six months for the government to investigate and try to resolve the claim. If six months pass without a denial, a claimant is not required to sue, and the administrative claim can remain pending to allow additional time for a possible resolution. If the six months pass without a settlement, or if the government denies the claim, the claimant may sue.29 After the denial of a claim, suit must be filed within six months of the mailing, by certified or registered mail, of the denial notice.30
Before suing and within six months after a denial letter was mailed, a claimant may file a written request for reconsideration with the agency that sent the final denial.31 A timely request for reconsideration resets the six-month period for the government to make a final disposition, and the claimant may sue only after the expiration of the six months or within six months after the mailing of a denial letter.32 A request for reconsideration can be a valuable option if a client has already received a denial letter and the deadline for suing has not passed.
Considerations before Filing Suit
In addition to compliance with the timing requirements that govern when suit may be filed, plaintiffs’ counsel must comply with state substantive law. A common issue involving the FTCA’s intersection with North Carolina law is compliance with North Carolina Rule of Civil Procedure 9(j)’s requirement that a medical malpractice complaint must allege that the medical care and medical records have been reviewed by a person who is reasonably expected to qualify as an expert and is willing to testify that the medical care did not comply with the applicable standard of care.33 Although Rule 9(j) might seem to be a procedural, not substantive, requirement,34 the cases have required compliance,35 albeit typically with little or no analysis of the Erie issue. Attorneys should comply with Rule 9( j) in FTCA medical malpractice cases.
In North Carolina medical negligence cases involving emergency care, recent legislation requires clear and convincing evidence to establish liability.36 As noted above, the FTCA provides that the United States may be held liable under circumstances in which a private person would be liable under state law. Counsel must therefore prepare an FTCA case involving emergency care with this standard in mind.
State Statutes of Repose
Even when suit is filed under FTCA requirements, the government may claim that a state statute of repose bars the claim. For example, in a case involving a claim that water contamination at Camp Lejeune caused the plaintiff’s cancer, the government claimed that North Carolina’s General Statute § 1–52(16)’s 10-year statute of repose barred the suit.37 The court denied the motion to dismiss because the statute has an exception for latent diseases and alternatively held this interpretation was “necessary to avoid the finding that the statute violates the North Carolina Constitution’s guarantee of open courts.”38
In addition to arguing against the applicability of a statute of repose, counsel may have a strong argument that the FTCA preempts state law time limits. The Fourth Circuit has stated that the “key inquiry” in the analysis of a timeliness defense in an FTCA case is whether the state law “is a substantive statute of repose or a procedural statute of limitations.”39 A substantive statute of repose may bar an FTCA claim, but the FTCA preempts state procedural time limitations.40 The court did not, however, address what should happen when a plaintiff files an FTCA administrative claim within the time allowed by the FTCA and a state’s statute of repose, and then, after a long time passes before the government denies the claim, sues within six months of the denial as required by the FTCA but after the time provided by a state statute of repose.41 Some courts have held the FTCA’s deadlines preempt state statutes of repose,42 while others have held these statutes are substantive law that can bar FTCA actions when the statutes of repose would bar the actions if filed against private persons.43 In light of the FTCA’s timing and exhaustion requirements, as well as the Congressional intent to provide a process for resolving tort claims, the cases that hold the FTCA preempts state time limits are more persuasive.
Similar to preemption, counsel can also argue that equitable waiver prevents a state statute of repose from barring a timely filed FTCA claim. Several cases support the argument that a state statute of repose is tolled while an administrative claim is pending and before the denial that triggers the six-month limitation period of section 2401(b).44
Other North Carolina laws that may apply to FTCA claims are the cap on non-economic damages45 and the “billed versus paid” provisions that limit evidence of medical expenses to the amounts necessary to satisfy the bills.46 North Carolina’s appellate courts have not yet resolved constitutional challenges to these legislative enactments, so counsel should raise constitutional objections in federal court.
FTCA cases may also involve issues related to Medicare and Tricare. In medical negligence claims, clients often have Tricare, the program that pays for medical care for military members, their dependents, and military retirees. In those cases, the government has probably paid for post-injury treatment through Tricare or by providing treatment at a military medical facility. Most courts to consider the issue have held these programs are not subject to the collateral source rule, and the government is entitled to an offset for the bills that the government paid through these programs.47 The issue is more complex for future medical expenses, however, because current service members with fewer than twenty years of service are not guaranteed to serve the twenty years needed to be eligible for Tricare as a retirement benefit. It would, therefore, be speculative and unjust for a court to presume these benefits will be available to reduce future medical expenses.48
The FTCA limits attorneys’ fees to 20 percent of recoveries during the administrative phase and 25 percent after filing suit.49 Although FTCA cases involve some procedures and issues different from those in state tort cases, FTCA claims provide one clear benefit for injured clients — no worries about whether there is enough insurance coverage for a full recovery.
- 28 U.S.C. §§ 2671-2680 (2014).
- 28 U.S.C. § 2672 (2014).
- 28 U.S.C. § 2675 (2014).
- 28 U.S.C. § 2401 (2014).
- 28 U.S.C. § 2674 (2014).
- 28 U.S.C. § 2680 (2014) contains the full list of statutory exceptions.
- 5 U.S.C. § 8116(c) (2014).
- Feres v. United States, 340 U.S. 135, 146 (1950).
- Romero v. United States, 954 F.2d 223 (4th Cir. 1992).
- McMellon v. United States, 387 F.3d 329, 335 (4th Cir. 2004) (en banc), cert. denied, 544 U.S. 974 (2005).
- 28 U.S.C. § 2680(a) (2014).
- United States v. S.A. Empresa de Viacao Rio Grandense (Varig Airlines), 467 U.S. 797, 810 (1984).
- Suter v. United States, 441 F.3d 306, 310 (4th Cir.2006) (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
- Berkovitz, 486 U.S. at 536.
- Id. at 536-37.
- 28 U.S.C. § 2671 (2014); see United States v. Orleans, 425 U.S. 807, 814 (1976).
- Viault v. United States, 609 F. Supp. 2d 518, 525 (E.D.N.C. 2009).
- Id., citing Logue v. United States, 412 U.S. 521, 528-30 (1973); United States v. Orleans, 425 U.S. at 814; Williams v. United States, 50 F.3d 299, 306 (4th Cir. 1995).
- Under the Federally Supported Health Centers Assistance Act (FSHCAA), as amended, sections 224(g)-(n) of the Public Health Service (PHS) Act, 42 U.S.C. §§ 233(g)-(n), the Health Resources and Services Administration may deem certain health centers funded under the Health Center Program (Community Health Centers, Migrant Health Centers, Health Care for the Homeless Centers, and Public Housing Primary Care Centers) eligible for FTCA coverage.
- 28 U.S.C. § 2401(b) (2014).
- 28 U.S.C. § 2675(a) (2014).
- 28 C.F.R. § 14.2(b) (7–1–13 Edition) (emphasis added).
- 28 C.F.R. § 14.4 (7–1–13 Edition).
- 28 C.F.R. § 14.2(a) (7–1–13 Edition).
- 28 U.S.C. § 2675(b) (2014).
- 28 C.F.R. § 14.9(b) (7–1–13 Edition).
- 28 U.S.C. § 2675(a) (2014).
- 28 U.S.C. § 2401(b) (2014).
- 28 C.F.R. § 14.9(b) (7–1–13 Edition).
- N.C. Gen. Stat. § 1A-1, Rule 9(j).
- See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny.
- E.g., Littlepaige v. United States, 528 F. App’x 289, 292-93 (4th Cir. 2013) (unpublished), and cases cited therein; Lauer v. United States, No. 1:12-CV-41, 2013 WL 566124, at *4 (W.D.N.C. Feb. 13, 2013), and cases cited therein.
- N.C. Gen. Stat. § 90-21.12 (2014).
- Jones v. United States, 751 F. Supp.2d 835, 836 (E.D.N.C. 2010).
- Anderson v. United States, 669 F.3d 161, 165 (4th Cir. 2011).
- Chang-William v. United States, 965 S. Supp. 2d 673, 698 n.11 (D. Md. 2013).
- See, e.g., Cooper v. United States, 2013 WL 6845988, (E.D. Pa. 2013) (filing administrative claim within time provided by state statute of repose precludes use of the statute of repose to bar an FTCA suit, noting “a growing number of courts” have concluded that the FTCA preempts state statutes of repose to prevent them from barring claims filed within the times allowed by the FTCA); Jones v. United States, 789 F.Supp.2d 883, 892 (M.D.Tenn.2011) (given the intent of the exhaustion scheme established by the FTCA, an FTCA “claim is extinguished only if the claimant fails to meet the deadlines in § 2401(b), and a state’s statute of repose has no effect on the federal claim”); Zander v. United States, 786 F.Supp.2d 880, 885 (D.Md. 2011) (waiting for a final agency denial did not extinguish her claim because the FTCA’s statute of limitations preempts Maryland’s statute of repose, even though it is “substantive”; therefore, waiting for a final agency denial did not result in the claim being barred by the statute of repose); Mamea v. United States, No. 08-00563, 2011 WL 4371712, at *9-12 (D. Haw. Sept. 16, 2011) (regardless of whether a Hawaii statute was a statute of repose or other substantive provision, the FTCA’s timing provisions preempt the statute); Kennedy v. U.S. Veterans Admin., 526 Fed.Appx. 450, 458-59 (6th Cir. 2013) (unpublished) (White, J., concurring in the judgment) (because Congress enacted the FTCA to provide the process for resolving tort claims actions against the federal government and intended that a claimant who timely files an administrative claim is entitled to file suit within six months of the denial of the claim, it would be improper to permit an agency to delay denying a claim to allow a statute of repose to extinguish the claim).
- E.g., Augutis v. United States, 732 F.3d 749 (7th Cir. 2013); Smith v. United States, 430 Fed. App’x 246, 246-47 (5th Cir. 2011) (per curiam).
- Blau v. United States, 2013 WL 704762 (M.D. Fla. 2013), and cases cited therein.
- See N.C. Gen. Stat. § 90-21.19 (2014).
- See N.C. Gen. Stat. § 8-58.1 (2014); N.C. R. Evid. 414 (2104).
- Lawson v. United States, 454 F. Supp.2d 373, 414 (D. Md. 2006).
- Id. at 415.
- 28 U.S.C. § 2678 (2014).
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