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Caps & Immunities


the United States until their claims are formally denied by the appropriate federal agency, but are allowed, at their discretion, to treat an agency's failure to act on a claim for six months as a final denial, thus enabling them to file suit without a formal agency disposition. Despite the discretion given by the statute to an individual claimant, a claimant should not sit on her claim as waiting even twelve months after an agency’s deemed denial can be a bar to recovery. In Taumby v. U.S., 902 F.2d 1362, (8th Cir. Mo. 1990), a


federal inmate, James Taumby, filed suit against the Federal Bureau of Prisons alleging negligent medical treatment by a prison physician that resulted in permanent eye injury. Mr. Taumby duly filed a notice of claim with the Federal Bureau of Prisons. Although the Bureau denied the inmate’s claim within six months of receiving notice of the claim, from the record before the Court, it is evident that the Bureau’s denial never reached Mr. Taumby. Twenty months after initially presenting his claim to the Bureau, Mr. Taumby filed suit in district court under the FTCA. Te Bureau argued in its motion to dismiss that Mr. Taumby failed to bring suit against the United States within six months of the Bureau’s claim denial and thus, Mr. Taumby’s FTCA claim was time- barred. Te court found that although the Bureau’s claim denial had not reached Mr. Taumby, Mr. Taumby failed to act “within a reasonable time following the six-month period given to the Federal Bureau of Prisons to formally act upon his claim.” Pursuant to 28 U.S.C. 2675(a), the court ruled that Mr. Taumby was allowed to treat the Bureau’s failure to respond within six months as a denial of his claim, but that Mr. Taumby’s one year wait after the deemed denial date was an excessive amount of time to delay before filing suit. Finally, not only does the FTCA not provide for the


awarding of attorney fees to the prevailing party, the statute also sets strict limits on the amount of attorney’s fees that may be collected from one’s client in a tort claim against the federal government. Under 28 U.S.C. 2678, an attorney may not charge a client more than 20% of the recovery in attorneys’ fees if the claim is resolved at the administrative level. If a claim proceeds to court, an attorney may not charge more than 25% of the court settlement or judgment in attorneys’ fees. An attorney’s failure to adhere to 28 U.S.C. 2678 could result in a fine of up to $2,000 or imprisonment for up to one year, or both.


II. MARYLAND TORT CLAIMS ACT At the state level, bringing suit against the government or


a government entity is replete with its own set of challenges. Te Maryland Tort Claims Act (MTCA) provides for the waiver of sovereign immunity of the State in cases of tortious


acts or omissions committed within the scope of the public duties of state personnel. Te waiver of immunity applies only to acts by state personnel that are committed without malice or gross negligence. Under the MTCA, a written claim must be submitted to the State Treasurer within one year of the date of the injury. MD Code, State Gov. Art. 12- 106. Further, the Court of Special Appeals has held that even when the state has suffered no prejudice because of plaintiff's failure to comply with the written notice requirement, lack of the statutory notice is an automatic bar to plaintiff ’s claim. Williams v. Maryland Dept. of Human Resources, 136 Md. App. 153, 764 A.2d 351 (2000). Likewise, for tort claims levied against the Maryland Transportation Authority, claimants must submit a written claim to the Authority’s administrator within one year of the date of the injury. MD Trans. Art. 7-702. Also key in navigating tort claims against the state is


consideration of the type of case that a claimant seeks to institute. Attorneys should not accept non-economic cases against the state government as the statute imposes a damages cap of $200,000 per claimant per injury. MD Code, State Gov. Art. 12-104. Moreover, 12-109 prohibits


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