FAQs About the Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) provides the sole legal avenue for recovery for anyone who’s been injured or suffered property damage due to the negligent acts of a federal employee.

This FAQ will explore some of the most common questions about the FTCA, what it provides and what its limitations are, and how to use it. If you have further questions, contact the Doctor Lawyer Team to learn how our experienced FTCA attorneys can assist you.

What is the FTCA?

Passed by Congress in 1946, the FTCA applies when a government employee, acting in the scope of their work, injures someone or damages their property, either through negligence or as the result of a wrongful act. It is the exclusive money damages remedy for negligent acts or omissions by federal employees in the performance of their duties.

What are some examples of typical FTCA cases?

The most common types of FTCA cases include:

• Automobile crash cases, where a federal employee was driving in the course of their job, such as a postal worker in a route truck or a federal marshal in their government vehicle.
• Medical malpractice cases brought against doctors employed at VA hospitals or other federally run healthcare facilities, such as on military bases.
• Slip and fall cases that occur on federal land.

What types of claims aren’t covered by the FTCA?

Intentionally tortious actions committed by a federal employee, such as an assault or, a false arrest, won’t be covered by the FTCA. That said, an on-duty federal law enforcement officer who deliberately harms another person could be held liable under civil rights laws pursuant to a separate body of law.

Claims that are covered by other laws, such as Admiralty claims, are not covered by the FTCA. And government policies, no matter how harmful, are not liable to tort suits: You can’t sue the President under the FTCA because you don’t like the way he or she conducts foreign policy, for instance.

What qualifies someone as a federal employee under the FTCA?

Driving a government car or working in a government building does not automatically classify someone as a federal employee; in fact, the federal government relies on an army of contractors to carry out many of its functions. As a general rule, these persons cannot be considered tortfeasors under the FTCA.

United States v. Orleans, 425 U.S. 807 (1976), provides the test for determining whether an individual qualifies as a federal employee: If the federal government has the “right to control the details of” a person’s “day-to-day performance of duty,” they are a federal employee. The Orleans case is from the U.S. Supreme Court, but a number of federal Circuit Courts of Appeals have expanded upon this test. Thus, when this issue arises care must be taken to scrutinize the facts of the case under the applicable case law.

Another common question is whether that individual was acting within the scope of his or her federal employment when they committed the tortious act. Here, according to Williams v. United States, 350 U.S. 857 (1955), state tort law applies. For a uniformed medical doctor operating at a military hospital the answer is obvious, but what about a military recruiter driving a government vehicle home after work? Sometimes the devil is in the details.

What is the statute of limitations for FTCA claims and lawsuits?

Per Title 28 U.S.C. §2401(b):

• The limit for filing an administrative claim with the federal agency in question is set at two years from the date of the tortious act: “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate federal agency within two years after such a claim accrues.” There are some exceptions to this rule such as the Discovery rule, which provides that the statutory period does not start until the victim knew or reasonably should have known about the alleged negligence. For example, in a foreign instrument case, if a person discovers from an x-ray reading that a sponge was left in their body during a surgery three years ago, then the two-year period begins upon discovery. The Discovery rule is another area where the law varies slightly depending upon where the negligence occurred.
• If the administrative claim is denied, the claimant has six months from the date the denial is issued to bring a lawsuit against the agency, per 28 U.S.C. §2401(b)—even if this period exceeds the original two-year filing period for the claim.
• If the agency fails to either settle or deny the claim within six months of its filing, the claimant may treat the claim as denied and file suit in federal court. It has been our experience that federal agencies rarely act within six months. There is a tactical decision to be made on a case-by-case basis whether it is better to file suit at the six-month mark or wait to see if the case can be settled through the claims process. If liability is very strong and the prospective damages are significant, then it often makes sense to file suit. Obviously, there is a great deal of subjectivity regarding the strength of the case and the assessment of damages.

Service of the summons and complaint in a lawsuit in the event of a denial goes to the U.S. Attorney General and the U.S. Attorney for the relevant district. 28 U.S.C. §2401(b) and 28 CER §14.9(b) bar any claimant from bringing action against the federal government for damages sustained as a result of the tortious act once the statute of limitations has passed.

How are choice-of-law questions decided?

Under 28 U.S.C. §1346(b), the laws of the state where the claimant’s injury or damage occurred determine the government’s liability in FTCA matters. In most FTCA cases, the plaintiff can file suit in either the federal district where he or she resides or in the district where the negligent act took place. In either case, the district court judge will apply the law of the state where the alleged tortious act occurred.

In cases where choice-of-law is not straightforward, we recommend consultation with practitioners steeped in this area of law and its jurisdictional nuances.

How are damages determined in FTCA lawsuits?

The FTCA authorizes only monetary damages covering, for example, property loss or damage, physical impairment, loss of consortium, and pain and suffering. It also includes economic damages, which in some cases are extraordinarily high, while in other cases they are negligible. The FTCA does not authorize equitable relief, punitive damages, or prejudgment interest damages. Attorneys’ fees in FTCA “lawsuits” are limited to 25 percent of the relief awarded by judgment or compromise settlement. Attorneys’ fees claims that are settled through the administrative process are capped at 20 percent.

The monetary damages in an FTCA lawsuit cannot exceed the sum certain amount that is requested in the administrative claim. For this reason, administrative claims should specify a sum certain with the understanding it cannot be later increased. When in doubt err on the side of caution and request far more than you may initially visualize as appropriate. The only exception to this rule occurs as a result of “newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts.” See 28 U.S.C. §2675(b).

Do state damage caps apply under the FTCA?

Yes, the damages available to plaintiffs under the FTCA are subject to state damage caps. Attorneys will need to be accordingly mindful of these limits as they prepare both administrative claims and lawsuits.

Does the FTCA cover members of the U.S. armed forces?

The Feres doctrine, handed down in Feres v. United States, 340 U.S. 135 (1950) bars servicemembers or their survivors from pursuing tort lawsuits against the federal government for injuries sustained while on active duty. Controversial since its inception, the doctrine has been the subject of heated debate on Capitol Hill—and in the Supreme Court.

For the time being, while servicemembers are generally shut out from pursuing relief under the FTCA, there are some exceptions, as well as other avenues for prospective relief.
Feres does not, for example, prevent veterans from filing medical malpractice claims for care they receive after discharge, even for injuries sustained on active duty, per United States v. Brown, 348 U.S. 110 (1954). Family members of active duty servicemembers may be able to bring actions under the FTCA if they were injured by a federal employee acting within the scope of his or her employment.

Importantly, while technically not part of the FTCA, pursuant to the Richard Stayskal Act of 2019, active duty servicemembers can now file administrative claims for medical malpractice. This law does not permit lawsuits, but the administrative claims process is an avenue for relief. We will separately cover this topic in more detail.

The Doctor Lawyer Team

The Doctor Lawyer Team includes attorney Paul McConnell, a retired Marine Corps Colonel, and Dr. Michael Giordano, a licensed neurosurgeon and attorney.