Every year, tens of millions of Americans receive medical care at military base facilities, U.S. Department of Veterans Affairs (VA) hospitals, and federally funded clinics.1 Even more Americans share the road every day with postal trucks and military vehicles.2 Last year, more than 280 million people visited national parks.3 What do these people have in common? If they suffer an injury at the hands of a federal employee, they each can bring a claim under the Federal Tort Claims Act (FTCA).
The FTCA creates the potential of recovery for people harmed by negligence, but it also presents the challenge of satisfying myriad federal and state law requirements that threaten to destroy your clients’ chances of recovery. Knowing where these pitfalls exist will help you effectively navigate your clients down the sometimes bumpy road of federal tort claims.
The threshold question is whether the FTCA provides a remedy for your client. Under the FTCA, the United States may be held liable for any injury, death, or loss of property “caused by the negligent or wrongful act or omission of any employee of the government 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.”4
Although the FTCA creates a broad waiver of sovereign immunity, there are limits to recovery in both statutory exceptions and case law. The FTCA expressly excludes 11 common law torts for which a private person would be liable: claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contractual rights.5
Several classes of plaintiffs are also excluded from recovery. Active-duty servicemembers and their families are barred from recovery for injuries to the active-duty servicemember that occur incident to his or her service.6 Federal employees who are injured while performing their duties are barred from recovery; they have an exclusive remedy under the Federal Employees’ Compensation Act.7 Whether a servicemember or federal employee is barred depends on the factual circumstances of the injury and the prevailing case law in that jurisdiction.
Sometimes, even if the plaintiff is covered by the FTCA, the negligent actor may not be. While the United States is the only proper defendant in an FTCA lawsuit, the wrongdoer must be an employee of the government to invoke FTCA coverage.8 The liability that the United States assumes under the FTCA is based on a respondeat superior theory of liability.9 Where there is no employer-employee relationship, there is no government liability.
This issue often arises in the context of medical care at a VA hospital, where doctors and nurses may be employees of a university that has a contract with the VA. To determine whether there is an employer-employee relationship, you can ask the administrative claims adjuster for a copy of relevant employment contracts after you file an FTCA claim, or you can make a Freedom of Information Act request.
Certain conduct by federal employees is exempt from FTCA coverage because it constitutes a “discretionary function.”10 Where “no private analog exists” for civil liability, no cause of action exists under the FTCA.11 This exception is based on the notion that Congress wanted to prevent judicial “ ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy.”12
Although the discretionary function exception is somewhat murky, it generally excludes three types of claims: those based on administrators’ decisions, those based on agencies’ or officials’ regulatory conduct, and those arising from the design and execution of public works.13 The discretionary function exception exists primarily to bar claims that challenge the formulation of government policy.14 Traditional negligence claims, such as those involving medical malpractice and automobile accidents, are not barred by this exception.
You have determined that your client, the wrongdoer, and the facts surrounding the injury fall within the FTCA’s scope. Now your client must exhaust his or her administrative remedy by presenting a claim to the appropriate federal agency and allowing six months for the agency to investigate it. Claims often can be resolved administratively without ever filing suit in federal court, sparing clients significant litigation expenses.
To properly present an administrative claim, often referred to as the Standard Form 95, the claimant must send the form to the appropriate federal agency, setting forth the details of the incident and the resulting damages.15 The claim must be for a “sum certain.” There is no limit on the amount that may be demanded, but whatever amount is claimed administratively will be the “ceiling” for damages in federal court if a lawsuit is filed, so it is important to estimate a worst-case-scenario value. The amount of damages sought at trial can exceed the amount of the administrative claim only in the case of “newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency.”16
The FTCA has a two-year statute of limitations.17 There is no tolling provision for minors. If the federal agency denies the claim, a federal lawsuit must be brought within six months of written notice of denial by registered or certified mail.18
After six months has transpired, if the federal agency has not made a final disposition of the claim, the claimant has the option to deem the claim denied and file suit in federal court. It is not mandatory that suit be filed; the claimant may elect to leave the claim pending administratively for strategic reasons.
Six months have come and gone and you have not reached a settlement administratively. Before you file suit in federal court, there are many pitfalls to avoid, mostly in state law. Under the FTCA, plaintiffs must juggle federal procedural law and state substantive law. While this seems daunting, the same issues tend to come up in every case.
State notice and expert requirements. Many states have presuit notice or expert report requirements, particularly in medical negligence cases. Never assume these are merely procedural requirements that do not apply in FTCA cases.
Several jurisdictions have held that state presuit notice requirements or restrictions on experts are substantive law that applies in an FTCA case. Whether these requirements are viewed as substantive law or procedural law varies from jurisdiction to jurisdiction.
For example, in FTCA cases filed in Virginia, plaintiffs must provide a written expert certification that the standard of care was breached and that this is what caused the injuries claimed.19 North Carolina requires a statement concerning expert certification of the case’s merit to be pleaded directly in the original complaint in medical malpractice cases.20
In medical malpractice cases in Texas, plaintiffs must file expert reports on or before the 120th day after the lawsuit is filed.21 Federal courts have held that this statute is procedural in nature, is preempted by Federal Rule of Civil Procedure 26, and does not apply to FTCA cases.22 But far more stringent expert requirements in Tennessee state law—requiring the expert to be from a contiguous state and have knowledge of the standard of care in a similar sized community—have been held applicable to FTCA cases.23
State statutes of repose. You filed your FTCA claim within the two-year statute of limitations. Six months have passed since you filed Form 95, but you are engaging in good-faith negotiations with the government over your claim. You have received letters from the government attorney informing you that even though you may file suit, it is within your right to continue negotiating the administrative claim without losing your right to file suit. So you continue to negotiate until you decide a resolution cannot be reached.
You then file suit in federal court, and the U.S. attorney files a Federal Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction citing the state statute of repose law. The government argues that even though you timely filed within all FTCA limitations periods, the state repose statute has run and should bar your case.
What is the hook for the government’s position that state statutes of repose can bar an FTCA claim that otherwise complies with the FTCA? The FTCA statute provides that the United States shall be liable “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.”24 It also states that the United States shall be liable “in the same manner and to the same extent as a private individual under like circumstances.”25 So, the government argues, the court must look to the law of the place where the negligent acts occurred.
Some federal courts have been persuaded by this argument even though it directly conflicts with the limitations provisions and overall purpose of the FTCA. These courts have found that the two FTCA sections cited above require application of the state repose statute even when the claimant has satisfied all the FTCA’s filing and presentment requirements.26
So what do you do when you find yourself caught between the conflicting laws of the state repose statute and the FTCA? In most cases where the courts have applied the state repose statute to bar the FTCA claim, the plaintiff attorney failed to fully brief the issue of federal preemption.
A federal law preempts a state law when the two conflict—when compliance with both federal law and state law is impossible or in circumstances where the state law serves as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.27 Plaintiff attorneys should argue that applying state repose statutes implicates both rationales of the preemption doctrine.
In many cases, compliance with both the FTCA procedural and jurisdictional prerequisites and the state’s repose statute is impossible. Courts have held that the FTCA’s limitations statute is also a repose statute, which sets up a direct conflict with any state repose statute. In Kubrick v. United States, the Supreme Court stated that the statute of limitations period is a statute of repose and held that the FTCA is a substantive part of the United States’ waiver of immunity, which preempts any applicable state limitations period.28
In Conn v. United States, the Sixth Circuit held that the FTCA limitations statute is a repose statute that can indefinitely toll the federal claim. Specifically, the court held that §2675(a) of the FTCA provides no outside limit on when an FTCA claim may be brought if the claimant exhausts administrative remedies.29 The court held that a lawsuit filed four years after the Form 95 filing was not barred because the FTCA contemplates an indefinite tolling of limitations as part of the condition of its sovereign immunity waiver. Multiple courts of appeal have echoed this position.30
Other federal courts have also held that federal limitations statutes preempt state statutes of repose.31 These courts have wisely reviewed the whole statutory scheme of the federal FTCA law and held that a conflict exists between the federal law and the state repose law, so the preemption doctrine must be applied.
They have also held that applying state repose statutes implicates the second conflict preemption prong because it frustrates the purposes and objectives of Congress as expressed in the FTCA. As mentioned above, the claimant may file suit at any time after the six months has passed, and there is no outside limit on when an FTCA claim may be brought if the claimant exhausts administrative remedies and the agency has not issued a denial. By requesting application of the state repose statute despite its conflict and interference with these FTCA requirements, the government positions the state law as an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”32
The FTCA creates a nationally uniform time frame and procedure by which federal torts are brought against the United States. In pushing a state repose argument, the government asks courts to override these provisions. But, as one case noted, the courts “are not free to construe [the FTCA] so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. . . . [W]e should not take it upon ourselves to extend the waiver beyond that which Congress intended. Neither, however, should we assume the authority to narrow the waiver that Congress intended.”33
When faced with this challenge, you must make clear that applying the state repose statute changes the plaintiff’s obligations under the FTCA to such an extent that it alters the purpose and meaning of the statute Congress created. The government seeks to modify the federal sovereign immunity waiver found in the FTCA, but courts should decline to do so.
Damages caps and traps. Under the FTCA, the laws of the state where the cause of action arose are binding as to the measure of damages.34 So if a state applies damages caps, such as in medical malpractice claims, those caps apply to your client’s FTCA claim as well.
Another damages issue may arise that is not tied to a particular state’s damages law—TRICARE and Medicaid/Medicare offset issues. TRICARE is the insurance scheme that covers military families’ health care. In most FTCA suits, your ¬clients will have TRICARE coverage for most of their past and present medical expenses. By statute, the government is entitled to an offset for medical care expenses covered by TRICARE in the past.35
But what about future offset of damages for medical expenses allegedly covered by TRICARE? The issue is a procedural and evidentiary one. In an FTCA case, the issue of whether the government is entitled to an offset, including one based on alleged TRICARE coverage, is an affirmative defense on which the government bears the burden of proof.36
A majority of federal courts has looked to the source or origin of the funds provided to determine whether they are collateral sources that should not be subject to offset. Using this analysis, most federal courts have ruled that TRICARE benefits or their equivalent are not collateral sources to the federal government, so they are subject to offset.37
The plaintiff must make the government’s claim for future offset about the burden of proof. The government must prove not only what specific medical care and treatment will be covered and with a reasonable certainty, but also the specific amount of future medical care and treatment reduced to present value. Otherwise, it has not met its burden.38 Often the government will simply claim its right to offset and use past coverage as proof of future coverage, but this is not enough, and it requires the court to speculate on future amounts.
Some courts have held that the government’s failure to submit qualified expert testimony as to what future amounts, if any, will be paid by TRICARE for future medical care is fatal to the government’s offset claim.39 The plaintiff should highlight the speculative nature of any future TRICARE offset.
Often, the active-duty military member on whom the dependent’s TRICARE benefits rely is far from reaching the key 20-year retirement threshold. Under the current TRICARE scheme, once the military member crosses the 20-year service line, his or her spouse will also be covered by TRICARE when the military spouse retires. The children of military parents will be covered until the age of majority or through college.
The government will argue that the court should assume a military member will serve 20 years and then further assume the applicability of benefits for the dependents once that date is reached. But courts have held that the assumption of 20-year service in support of TRICARE offset claims is speculative and requires the court to place the entire burden—and risk that dependents will not be covered—on the military family.40
Successful federal tort practitioners know the importance of early case analysis and staying abreast of state law. With careful monitoring of presuit requirements and early evaluation of damages, you and your client can achieve a satisfying resolution administratively or in federal court.
- The U.S. Census Bureau estimated that 21.9 million veterans were living in the United States in 2010. U.S. Census Bureau, Facts for Features, “Veterans Day 2010: Nov. 11,” CB10-FF.21 (Oct. 27, 2010), www.census.gov/newsroom/releases/archives/facts_ for_features_special_editions/cb10-ff21.html.
- The U.S. Department of Transportation estimated that there were 190,625,023 licensed drivers in the United States in 2000. Fed. Highway Admin., Off. Highway Policy Info., “Our Nation’s Highways—2000,” Publication No. FHWA-PL-01-1012, www.fhwa.dot.gov/ohim/onh00.
- Natl. Park Serv. Public Use Statistics Off., Annual Summary Rpt. 2010. http://nature.nps.gov/stats/viewreport.cfm.
- 28 U.S.C. §1346(b)(1) (2006).
- 28 U.S.C. §2680(h) (2006).
- Feres v. U.S., 340 U.S. 135 (1950).
- 5 U.S.C. §8116(c) (2006).
- Neither the agency nor the negligent federal employee should be named in a federal lawsuit under the FTCA. The United States is the only proper defendant for negligent federal conduct. 28 U.S.C. §2679(a) (2006).
- 28 U.S.C. §1346(b).
- 28 U.S.C. §2680(a); see also 42 U.S.C. §5148 (2006).
- C.P. Chem. Co. v. U.S., 810 F.2d 34, 37–38 (2d Cir. 1987).
- U.S. Fire Ins. Co. v. U.S., 806 F.2d 1529, 1534 (11th Cir. 1986) (quoting U.S. v. Varig Airlines, 467 U.S. 797, 814 (1984)).
- E.g. Dalehite v. U.S., 346 U.S. 15 (1953); see also Varig Airlines, 467 U.S. 797.
- Summers v. U.S., 905 F.2d 1212 (9th Cir. 1990).
- See 28 U.S.C. §2675 (2006).
- 28 U.S.C. §2675(b).
- 28 U.S.C. §2401(b) (2011).
- 28 U.S.C. §2675(a).
- Va. Code Ann. §8.01-20.1 (2007); see e.g. Parker v. U.S., 475 F. Supp. 2d 594, 597 (E.D. Va. 2007).
- N.C. Gen. Stat. §1A-1, Rule 9(j) (2001); see e.g. Est. of Williams-Moore v. Alliance One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 649 (M.D.N.C. 2004).
- Tex. Civ. Prac. & Rem. Code §74.351(a) (2011).
- McDaniel v. U.S., 2004 WL 2616305 (W.D. Tex. Nov. 16, 2004).
- Doe v. U.S., 280 F. Supp. 2d 459, 469 (M.D. N.C. 2003).
- 28 U.S.C. §1346(b)(1) (2006).
- 28 U.S.C. §2674 (2006).
- See e.g. Smith v. U.S., 2011 WL 1533432 (5th Cir. Apr. 22, 2011); Simmons v. U.S., 421 F.3d 1199 (11th Cir. 2005); Simpkins v. U.S., No. EDCV09-2265 (C.D. Ca. Feb. 17, 2011); West v. U.S., 2010 WL 4781146 (S.D. Ill. Oct. 25, 2010); Anderson v. U.S., 2010 WL 1346409 (D. Md. Mar. 30, 2010); Vega v. U.S., 512 F. Supp. 2d 853 (W.D. Tex. 2007).
- See Stychno v. Ohio Edison Co., 806 F. Supp. 663, 668 (N.D. Ohio 1992).
- 28.444 U.S. 111, 117 (1979).
- 867 F.2d 916, 920 (6th Cir. 1989); see also Ellison v. U.S., 531 F.3d 359, 362–63 (6th Cir. 2008) (reaffirming Conn’s logic).
- See e.g. Rakes v. U.S., 442 F.3d 7, 20 (1st Cir. 2006); Lekas v. United Airlines, Inc., 282 F.3d 296, 300 (4th Cir. 2002).
- Zander v. U.S., 2011 WL 345884 (D. Md. Feb. 2, 2011); Jones v. U.S., 2011 WL 1565734 (M.D. Tenn. Apr. 25, 2011). In A.S.I., Inc. v. Sanders, the court rejected a claim that the mere fact that a state statute of repose might be deemed substantive law immunizes a party from preemption under federal law. It held that state statutes of repose are treated the same as state statutes of limitations for purposes of preemption analysis. 835 F. Supp. 1349, 1358 (D. Kan. 1993). Likewise, in Holland v. Kitchekan Fuel Corp., the court held that the state statute of repose conflicted with the limitations section of the federal coal act, so the federal law preempted the state repose statute. 137 F. Supp. 2d 681, 685 (S.D.W. Va. 2001). In Chatham Steel Corp. v. Brown, the court rejected the defendant’s attempt to apply South Carolina’s statute of repose. 858 F. Supp. 1130, 1150–51 (N.D. Fla. 1994).
- Stychno v. Ohio Edison Co., 806 F. Supp. 663, 668 (N.D. Ohio 1992) (citations omitted).
- U.S. v. Kubrick, 444 U.S. 111, 117–18 (1979) (citations omitted).
- 28 U.S.C. §1346(b) (2006); Rufino v. U.S., 829 F.2d 354, 359 (2d Cir. 1987); Ferrero v. U.S., 603 F.2d 510 (5th Cir. 1979); Whitley v. U.S., 170 F.3d 1061, 1079 (11th Cir. 1999).
- TRICARE is a creature of federal statute. See 10 U.S.C. §1095 (2006).
- Vanhoy v. U.S., 2006 WL 3093646 at *8 (E.D. La. Oct. 30, 2006), aff’d, 514 F.3d 447 (5th Cir. 2008); see also Crescent Cigarette Vending Corp. v. Toca, 271 So. 2d 53, 55 (La. App. 1972).
- See Mays v. U.S., 806 F.2d 976, 977 (10th Cir. 1986); see also Overton v. U.S., 619 F.2d 1299, 1305 (8th Cir. 1980).
- See Siverson v. U.S., 710 F.2d 557, 560 (9th Cir. 1983).
- Vanhoy, 2006 WL 3093646 at *8–9; see also Reilly v. U.S., 863 F.2d 149 (1st Cir. 1988); Lawson v. U.S., 454 F. Supp. 2d 373, 415 (D. Md. 2006).
- See Lawson, 454 F. Supp. 2d at 415.