1.9 Virginia and Federal Tort Claims Acts

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

1.9 VIRGINIA AND FEDERAL TORT CLAIMS ACTS

1.901 Federal Tort Claims Act.³¹⁸

A. In General. The Federal Tort Claims Act (FTCA) is a limited waiver of the protection of sovereign immunity that has been extended to the United States and its employees for tort liability for ordinary negligence.

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While the FTCA does not waive immunity for individual government employees, it allows vicarious liability of the government as an employer.

B. Liability of the United States Government. The FTCA provides that the federal government is liable for actions of its employees in the course of their employment only where a "private person[] would be liable to the claimant in accordance with the law of the place where the act or omission occurred." ³¹⁹ Although the substantive law of the place of the negligence applies to determine liability, federal law governs the determination of the timeliness of the action. ³²⁰

C. Statute of Limitations.

1. In General. 28 U.S.C. § 2401 provides that

[e]xcept as provided by chapter 71 of title 41 [the Contract Disputes Act of 1978,] every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.

. . . A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

2. Burden of Proof. The statute of limitations is an affirmative defense, but the claimant has the burden of showing an exception to the statute. ³²¹

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D. Accrual of the Action.

1. In General. A cause of action accrues when the patient knows, or in the exercise of reasonable care should have known, of both the existence and the cause of his or her injury. ³²²

2. Discovery of the Existence of the Injury. The plaintiff knows of the existence of the injury when the plaintiff is in possession of the critical facts that he or she has been injured. ³²³

3. Discovery of the Cause of the Injury. The plaintiff knows of the cause of his or her injury when the plaintiff is in possession of the critical facts regarding who has inflicted the injury ³²⁴ and the immediate physical cause of the injury is known. ³²⁵ Where the plaintiff is aware of the injury and the cause of the injury, the fact that the full extent of the injury is not known does not toll the statute of limitations. ³²⁶

4. Continuing Treatment Exception. The continuing treatment exception tolls the statute of limitations until the end of the course of treatment if that treatment is for the same illness or injury out of which the claim for malpractice arose. ³²⁷ The treatment must be for the same problem and must be by the same doctor, that doctor's associates, or other doctors operating under his or her direction. ³²⁸

5. Opinion of Physician. A patient is permitted to reasonably rely on his or her physician's opinion concerning the patient's prognosis. Where a physician has informed a patient that certain complications are reasonably to be expected or are not unusual, the plaintiff is not put on notice of any malpractice if he or she suffers those complications. ³²⁹

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6. Governmental and Nongovernmental Causes. The knowledge that is required to begin the running of the statute of limitations is knowledge that the government caused the injury. The statute does not begin running if or when other nongovernmental causes are discovered. ³³⁰

E. Failure to Warn or to Diagnose or Treat a Pre-Existing Condition. The plaintiff cannot reasonably know of the cause of the injury at the time of the failure to diagnose. The plaintiff's injury occurs when the problem develops into a more serious condition that poses greater danger to the patient or requires more extensive treatment. ³³¹

F. Administrative Claim. The first prerequisite to recovering for negligence under the FTCA is filing the administrative claim. The administrative claim is deemed presented when it is received by the appropriate agency, not when it is sent. ³³² The claim should provide sufficient information to allow an agency to process it. ³³³ The claim must state a "sum certain" of money damages. ³³⁴

G. Exceptions to the FTCA.

1. Feres Doctrine. The Feres doctrine provides that a person on active military duty cannot pursue a claim for injuries received due to the negligence of another government employee. ³³⁵ The Feres doctrine does not apply to dependents of military personnel or retired military personnel. ³³⁶

2. Foreign Country Exception. The FTCA does not apply to actions that arise in a foreign country. ³³⁷ Under the Military Claims Act (MCA), ³³⁸ a claims commission will be appointed by the federal government to settle and pay claims against the United States for the personal injury or death incident to noncombat activities arising outside the United States. The

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Feres doctrine also applies. Unlike the FTCA, the MCA is strictly administrative and unreviewable by the courts unless there are constitutional violations.

H. Where to File the Claim. Claims may be filed in the federal district court ³³⁹ where the act or omission occurred or where the plaintiff resides. ³⁴⁰

I. Applicable Law.

1. Procedure. All procedural issues are governed by the Federal Rules of Civil Procedure. ³⁴¹

2. Standard of Care. Standard of care and informed consent are governed by state law. ³⁴²

3. Expert Opinion. Admissibility of expert opinion is governed by substantive state law. ³⁴³

4. Causation. The particular test of causation under the FTCA is determined by state law. ³⁴⁴

5. Common Law Duties. Whether a state law duty can be applied to the United States is determined by federal law. ³⁴⁵

6. Defenses. The United States has available any defenses accorded to an ordinary individual defendant. ³⁴⁶

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7. Damages. The law of the state where the tort occurred governs the damages. ³⁴⁷ The United States is entitled to any cap on damages that would be applicable to an ordinary individual defendant. ³⁴⁸

8. Punitive Damages. Punitive damages are not recoverable against the United States regardless of state law. ³⁴⁹

9. Accrual of Cause of Action. The question of when a cause of action accrues under the FTCA is governed by federal law. ³⁵⁰

J. Practical Pointers and Potential Pitfalls.

1. Administrative Claim. An administrative claim must always be filed before filing an action in federal district court. ³⁵¹ Amendment is rarely permitted and will only be allowed upon a showing of newly discovered evidence or proof of intervening facts. ³⁵² The amount the plaintiff lists as the sum certain of monetary damages in the administrative claim is the ceiling, and the plaintiff cannot recover any greater amount. The plaintiff may not present an administrative claim on one set of facts and then file suit on a different set of facts. ³⁵³

The United States Attorney's Office provides a standard form, Form 95, upon which to make a claim. ³⁵⁴ The claim must be served on the head of the agency whose activities gave rise to the claim. ³⁵⁵ If there is more than one agency with potential liability, both agencies must be served. ³⁵⁶

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2. Complaint. After filing the administrative claim and receiving a denial from the administrative agency, a claimant has six months to file a complaint in federal district court. Pleadings should conform to the Federal Rules of Civil Procedure. In the complaint, it is necessary to aver that there has been an administrative claim, that the claim was timely, and that there has been final determination of the claim. ³⁵⁷

3. Persons Under a Disability. A person under a legal disability at the time the claim accrues may commence an action within three years after the disability ceases. ³⁵⁸ A tolling provision for persons under a disability is not provided. ³⁵⁹ However, several federal courts have held that where a claimant is rendered incompetent by the very acts of malpractice complained of, the cause of action accrues when a...