VA Nebraska-Western Iowa Health Care System
Torts Claims Protection Overview
It is likely that over the course of your health professions career, you will encounter a patient that feels he or she has been injured in the course of your care. The patient, or the patient’s attorney, may decide to file a claim based on their alleged injuries. The Federal Tort Claims Act (FTCA), August 2, 1946, chapter 753, title IV, 60 Stat. 842, 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671–2680), is a statute enacted by the United States Congress in 1946 permitting private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. Liability under the FTCA is limited to "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." 28 U.S.C. § 1346(b). However, as long as you were doing your job conscientiously, any claim against you will become a claim against the United States government. This "substitution" protects you from personal liability.
An important provision of the Federal Employees Liability Reform and Tort Compensation Act (FTCA) provides that "upon certification by the Attorney General that the defendant employee was acting within the scope of their office or employment at the time of the incident out of which the claim arose … the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to ’remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and … instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.’ H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)
If you are named in a claim, be aware of the following facts:
• Malpractice claims filed in state court will be thrown out because the state court does not have jurisdiction in these matters. The claim may be moved to Federal District Court. Again, the case may be dismissed if the claimant has not first filed under the administrative processes required under the FTCA.
• If the claim is denied through the VA’s administrative process, the case may then be brought to Federal District Court (FDC). The plaintiff has six months to file suit in FDC. At this point, the US Attorneys in the Department of Justice become the defense attorneys. The Justice Department has experience defending malpractice claims filed against the Department of Defense, Veterans Administration, National Health Service Corps, and other federal departments and agencies. They will substitute the federal government as the defendant. Then, working with VA’s attorneys, and all of the witnesses (you, your supervisors, and other parties to the case such as involved nursing staff), they will develop the defense case.
• If a payment is made to the claimant either administratively or through the federal court system, this is similar to a malpractice settlement on your behalf. While it is possible that your name would be forwarded to the National Practitioner Data Bank, this is extremely unlikely. Your supervisor, being legally responsible for the care provided to the patient, is normally the person whose name is forwarded to the NPDB.
If an administrative claim is pursued, the VA will collect specific information regarding the case. It is best to cooperate with the information collection process. This information will be reviewed by practitioners (peers) to determine if the standard of care was met. The Office of General Counsel in VA, through a network of Regional Counsel, will determine if the claim has validity and if the claim should be paid or denied. If you are contacted by Regional or General Counsel in VA regarding a tort claim, provide accurate information to the best of your recollection. Because some claims take a long time to file and process, you are allowed to ask for a copy of the medical record to refresh your memory.
As a healthcare professional in the VA system, you should understand your legal protections in the case of a patient claim against you.