Caps & Immunities
for violations of federal law. In addition, assault or battery claims arising out of the performance of health care functions are not excluded under the Gonzalez Act. 10 USC 1089(e). Both statute and case law exclude claims based on assault or battery by any other federal employees. Any claim involving false imprisonment, false
arrest,
malicious prosecution, or abuse of process are specifically excluded from the FTCA. 28 USC 2680(h). Tis exclusion generally applies when a federal employee is acting within the scope of their employment, and it bars claims even if they may constitute a separate cause of action under state law. Many states have torts for negligent infliction of emotional distress and, in general, that type of claim is going to be excluded. For false imprisonment and false arrest cases, the United States is also entitled to all defenses that may be applicable under state law (any actions involving libel, slander, misrepresentation or deceit are excluded under the FTCA). 28 USC 2680(h). Again, the courts have broadly construed these claims to include both negligent and intentional acts of misrepresentation. United States v. Neustadt, 366 US 696 (1961). Courts have applied this exception to bar claims involving invasion of privacy and for claims involving the transmission of defamatory information. Te exclusion does not bar claims against physicians who misdiagnose a patient because the gravamen of that claim is one of medical malpractice. Claims arising in a foreign country are excluded under the
FTCA. 28 USC 2680(k). In general, courts have held that the U.S. embassies and leased foreign bases do constitute a foreign country. United States v. Spelar, 338 US 217 (1949). Tere are some interesting questions as to what constitutes a foreign country if a tort occurs in a U.S. embassy or on a leased military base. Claims arising in a foreign country may be cognizable pursuant to the Military Claims Act, subject to many of the same exclusions contained in the FTCA. 10 USC 2733. Tis is an act that operates under similar principals to those under the FTCA, although it has markedly different remedies and rights.
VI. Conclusion Whenever one is evaluating a potential claim against
the United States government, it is very important to understand not only what conduct the FTCA is supposed to cover, but also the numerous exceptions to the FTCA. In some cases, the acts will not be covered while in others there are remedies which must be pursued through different statutes. In addition, certain claims may have a statute of limitations that is actually longer than the general two year statute of limitations applicable to the FTCA and knowledge of that statute of limitations will have a major impact on your assessment of the case and how you advise your client. While
Trial Reporter / Spring 2011 33
this article has reviewed a number of major exceptions to the FTCA, there are others which exist that I have not been able to mention because they have such limited application. When faced with any unusual fact pattern, I recommend that you first consult Department of the Army Pamphlet 27- 162 which has provided me with much of the material that I have used to write this article. It is an invaluable reference and contains both statutory and case law.1
Biography Karl J. Protil’s practice consists of personal injury
litigation, with an emphasis on medical malpractice and claims against the federal government.
He has extensive
experience before federal courts through the United States and in state trial courts in Maryland, Virginia and the District of Columbia.
He is particularly active in cases
involving brain damage to infants during birth. Prior to joining Shulman, Rogers, Gandal, Pordy & Ecker, P.A., Mr. Protil spent six years in the Army Judge Advocate General’s Corps and a year with Medical Mutual Liability Insurance Society of Maryland.
1 See David F. Albright, Esq. and Dawn M. Taylor, Esq.’s article on page 21, “Avoiding a Baker’s Dozen of Pitfalls of Government Tort Claims Acts: Federal, State and Local,” for an additional overview of recent Federal Tort Claims Act developments.
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