Filing of Claims Against The United States Pursuant to the Federal Tort Claims Act: An Overview by Karl J. Protil, Jr.


Karl J. Protil, Jr. (Shulman, Rogers, Gandal, Pordy & Ecker) is an advocate for victims of medical negligence and personal injury. He seeks accountability and responsibility from the perpetrators of negligence and a just and fair resolution on behalf of his clients. His practice is devoted to defending the rights of the injured. Mr. Protil is licensed in Maryland, Virginia, the District of Columbia and various federal courts.


For over 150 years, the United States,


as a sovereign nation, enjoyed sovereign immunity. Just as with the kings of olden days, there was no statutory scheme by which the United States or its employees could be sued in tort, nor was there any common law remedy. Then, in 1949, Congress enacted the Federal Tort Claims Act (FTCA), which waived sovereign im- munity and set up a statutory scheme whereby citizens could seek to hold the United States responsible in tort or for property damage. The Act applies to tort or property damage occurring in the United States, its commonwealths, terri- tories and possessions. The FTCA is codified in 28 U.S.C. §1346(b), §1402(b), §2401(b), and §2671-2680. The purpose of this article is to review the basic concepts involved in bringing a claim against the United States pursuant to the FTCA.1


Who is a Proper Claimant


Any non-active duty service member can bring a claim if they are injured by a government employee. This includes re-


1


The FTCA applies to acts occurring within the United States, its possessions, and terri- tories. The Military Claims Act (MCA) ap- plies to covered acts occurring outside the United States. The MCA is codified is 10 U.S.C. §2733 et.seq. and is very similar to the FTCA with two major differences. First, the MCA is administrative only and there is no right to any judicial review. Second, dif- ferent agencies have what is known as “single service jurisdiction” over claims occurring in a particular location. This applies mainly to claims against the armed forces. That means, for instance, that no matter what agency employee commits a tort, in England, the Air Force will investigate and process all of those claims. Single service claims responsi- bility as assigned by the Department of De- fense can be found in 10 U.S.C. 2733, DODD 5515.8 and Army Regulation 27- 20, Claims, paragraph 1-20 a(2).


36


When Congress enacted the FTCA, they set the statute of limitations (SOL) at two (2) years from the date of the wrong. Remember that because the FTCA set up the statutory scheme by which the United States can be sued, Fed- eral law controls this issue. For medical negligence cases, the claim accrues when the claimant discovered or by reasonable diligence should have discovered the in- jury and its cause, but a claimant is not required to know of the negligent or wrongful nature of the act.3


tirees, civilians, children and spouses of service members. Claims can be brought against any agency for matters as diverse as medical negligence, automobile acci- dents or premises liability. Under United States v. Feres, 340 U.S. 135 (1950) and United States v. Johnson, 107 S.Ct. 2063 (1987), neither active duty service mem- bers nor their family may bring a claim if the active duty service member is injured.2 Family members cannot bring a claim because their claims are derivative of the active duty service member’s claim. When a family member is injured, however, the active duty service member’s claim is de- rivative of their claim.


Therefore, the


injured family member may make a claim and the active duty service member may also bring a claim that is derivative of the family member’s claim.


Statute of Limitations – When Must a Claim Be Filed


of the statutory elements is received, the SOL is tolled.


Another important distinction from most state laws is that the SOL under the FTCA is not tolled during periods of in- fancy or incompetence.5


There are,


however, a few instances where the SOL can be extended in an FTCA case. Most importantly, if you have a claimant who is on active duty, their SOL does not start to run until they leave active duty. The Soldiers and Sailors Civil Relief Act (SSCRA) extends the SOL, and the sol- dier need not show that their military service prejudiced their ability to file a claim.6


As discussed earlier, a service


member’s claim would have to be a de- rivative claim because of the Feres bar. You see the application of the SSCRA most frequently in birth trauma cases where parents either wait to contact an attorney because they believe their child will get better, or they do not understand that negligence was involved. You can also extend the SOL if fraudu- lent concealment is involved. In situations where the tortfeasor covers up the wrong or lies to the injured party, there may be enough of a basis to extend the SOL. Fi- nally, because state law applies, you can rely on the continuing treatment rule if


(Continued on page 38) 4 In medical


negligence cases, you cannot wait until you know the full extent of your injuries.4 As soon as your claim form containing all


2 Although the 9th Circuit held that medical


malpractice claims were not necessarily barred in 1986, this decision was modified and subsequently reversed by the 9th


Circuit


in 1987. Atkinson v. United States, 825 F.2d 202 (9th


987 (1988). 3 28 U.S.C. §2401(b). Trial Reporter Cir. 1987), cert. denied 485 U.S. 5


Kubrick v. United States, 444 U.S. 111 (1979). Because there has been substantial litigation around the meaning and extent of Kubrick, I urge you to fully research this is- sue before accepting or declining a case when it appears the SOL has run. There are over 100 cases, some following Kubrick closely and others using an objective test.


Pittman v. United States, 341 F.2d 739 (9th Cir. 1965) cert. denied, 382 U.S. 941 (1965). There have been cases, however, where the SOL was extended for a claimant in a coma because no guardian was appointed. Wash- ington v. United States, 769 F.2d 1436 (9th Cir. 1985).


6 Conroy v. Avis Keff, 113 S.Ct. 1562 (1993). Spring 2006


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52