Exploring Military Medical Malpractice Actions: the Federal Tort Claims Act
| Publication year | 1996 |
| Pages | 77 |
1996, May, Pg. 77. Exploring Military Medical Malpractice Actions: The Federal Tort Claims Act
The military has an unmistakable presence in Colorado. Military installations such as the U.S. Air Force Academy, Peterson Air Force Base, Fort Carson, NORAD, Fitzsimmons and the Pueblo Army Depot are not unfamiliar. More than 34,500 military personnel are stationed in Colorado.(fn1) While these individuals enjoy many of the same rights as any other Coloradan, a unique structure of tort laws, inapplicable to Colorado civilian residents, dictates the remedies available to these individuals. These tort laws are incorporated in the Federal Tort Claims Act ("FTCA")(fn2) and its offspring, the Feres doctrine.(fn3)
This article outlines the procedural requirements for filing a claim and explores how the FTCA and the Feres doctrine impact medical malpractice actions brought by military personnel and their families against the United States.
The procedural requirements for filing a claim under the FTCA may present a mystery for an attorney unaccustomed to interacting with the military. Under the FTCA, a claimant, prior to commencing a tort suit against the United States, must present that claim to the legal office at a military installation. The claim should be filed on a Standard Form 95. This form can be obtained from the legal office at any military installation.
The claimant is required to demand a "sum certain" at the time the claim is presented.(fn4) Failure to state a sum certain may result in a dismissal of the claim. A claimant is barred from demanding more money during litigation than was requested originally. Once a claim is filed, the responsibility for investigating and evaluating the claim passes to the military installation's legal office.
Under the FTCA, a tort claim is barred unless presented within two years after the claim accrues.(fn5) A claim accrues under the FTCA when the injured party discovers, or should have discovered in the exercise of reasonable diligence, the critical facts and cause of injury.(fn6)
If a final disposition of the claim is not made within six months after it is filed, the claimant may take such failure as a denial.(fn7) The final written denial triggers a six-month statute of limitations on suit in federal district court, running from the date that the notice of final denial is mailed. After this time, a suit is "forever barred." If settlement is offered, once the claimant accepts the settlement, it is final and represents a complete relief against the government and its employee (whose negligence gave rise to the claim). If a settlement cannot be reached, U.S. district courts may exercise exclusive jurisdiction.
The FTCA does not authorize punitive damages or interest prior to judgment or jury trials.(fn8) Further, it contains statutory limitations on recovery of attorney fees: the ceiling in agency settlements is 20 percent, and the ceiling once in litigation is 25 percent.(fn9)
The federal government enjoys sovereign immunity from suits. The FTCA, with thirteen...
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