How the Federal Tort Claims Act Works
Military personnel and their families seeking treatment at military facilities have the right to safe, competent medical treatment, which is referred to as the standard of care. When a health care provider fails to meet the standard of care, the patient is entitled to file a claim for medical malpractice.
Military facilities such as the Veterans Administration (VA) hospitals are federal agencies. Because of this, bringing a medical malpractice claim for negligence occurring in one of these military facilities is a form of suing the government. The FTCA is an exception to sovereign immunity, which ordinarily prohibits suits against the government. Claims brought under the FTCA are lawsuits, so it is important to contact an attorney if you believe you may have a non-active duty or military family member medical malpractice Claim.
Requirements to Assert a Claim:
The claim must be asserted by either the injured military dependent, or by the active duty member on behalf of his or her child or spouse, or by their authorized representative (this usually means a lawyer).
What is a Meritous Claim?
In order to bring a successful non-active duty or military family member medical malpractice claim, the claimant must prove that the health care provider acted negligently and that this negligence caused an injury and damage. Proving a case requires obtaining and reviewing medical records in conjunction with experts and then presenting the claim, with supporting evidence, to the judge.
What Is the Difference Between the Military Claims Act and the Federal Tort Claims Act?
The Military Claims Act governs all malpractice cases that occur in overseas military facilities, and governs all cases that occur to an active duty military member.
The Military Claims Act does not permit lawsuits to be filed. All claims are to be decided administratively.
The Federal Torts Claims Act governs malpractice claims brought by non-active duty military members and their dependents where the malpractice was committed by a government employee, usually a military doctor.
The Federal Torts Claims Act allows for lawsuits.
The Bureau’s Annual Report to Congress for the Fiscal Year lists all payments that the United States made to claimants under the FTCA. The sum of the “Confirmed Payment Amounts” for all reported “Litigative Payments” and “Administrative Payments” pursuant to the FTCA equaled a total of $305,512,578.63 for 2019. This value includes only those payments that the Bureau explicitly coded as “Federal Tort Claims Act” payments. Those payments explicitly coded as “Military Claims Act” payments made up a total of $18,118,350 for 2019, prior to the passing of the new provision which allows active duty members to bring claims.
Is a Medical Malpractice Claim Under the Federal Tort Claims Act a Lawsuit?
Yes. However, claims brought under the FTCA must be brought in a way that gives the military facility an opportunity to settle the claim. Therefore, a claimant must present his/her claim to the facility prior to filing a lawsuit. The military facility will then review the claim and determine whether to pay it in full, attempt to settle, or reject the claim. A failure to respond within six months is seen as a rejection of the claim. If the claim is rejected or the parties are unable to reach a settlement, then the claimant must file a lawsuit in federal court within six months. Then, a judge must determine whether and to what extent the federal government will be liable for the injuries suffered by the claimant.