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Making Claims Under the Federal Torts Claims Act

In cases of widespread nursing home and long-term care facility abuses and negligence against patient residents, those patients and their families will often have recourse through tort actions for injury under relevant state laws. As previously discussed, there may also be False Claims Act cases to be made where companies operating nursing homes that receive federal dollars through Medicare and Medicaid fail to follow the law, rules or regulations in implementing those funds into their care of the patient residents. Such misuse or fraud of government funds can result in a recovery for the plaintiff and the government. On top of this, patients of a government operated facility, such as a Veterans Affairs hospital, who suffer injury or death as a result of negligence or abuse may bring a claim for damages under the Federal Tort Claims Act (FTCA).

The FTCA is the prime law under which private individuals can sue the government for injuries sustained as a result of the government’s actions or inactions, or those of employees or other individuals working on behalf of the government, such as a VA hospital administrator or doctor. In general, those individuals will not be subject to liability; only the government itself will. In light of the recent reports on the secret waiting lists at the Phoenix VA facility that led to further injury to veterans as well as the deaths of at least 40 veterans, those veterans and their families may very well have the right to sue for damages under the FTCA.

In order to demonstrate liability and a claim for damages under the FTCA, a helpful summary of the law outlines the four elements that must be demonstrated. These generally conform to the requirements in all tort law to show a tort occurred:

(1) Injury or property damage by a federal government employee;
(2) Federal government employee at the time performed his or her official duties;
(3) Federal government employee was negligent or wrongful in his or her acts;
(4) The negligent/wrongful act caused the injury or damage
Any veteran who suffers damages as a result of abuse or inadequate care at a government operated facility (a VA hospital, military hospital on or off base, or a federally supported clinic) and who is not on active military duty is eligible to file a claim. It is notable that under Supreme Court precedent, active duty military members are not allowed to make an FTCA claim since injuries are presumed to be a part of their service, although some in Congress has wanted to give active military access to remedies under the law. This also bars claims by veterans for injuries resulting from negligence committed during their active duty, but which were not symptomatic or apparent until after discharge or retirement from service. Family members of active military are permitted to sue under the FTCA for injuries received from treatment at a government-sponsored hospital, clinic or facility. With regard to government funded clinics, victims of negligence may also have a claim under the FTCA even if the treating physician or nurse were not government employees, because by accepting federal money, the clinic’s employees are unofficially considered government employees for the purposes of the FTCA.

Just as a resident patient of a nursing home can bring claims for injury due to negligence, so can patients at government-operated facilities or government-funded clinics. Such claims are more than likely to arise in the recent Veterans Affairs scandal. In filing this claim, it is important to understand what form you must use, where to file, as well as implications for how such recovery may affect any disability claims you make.

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