Federal Tort Claims Act
The Federal Tort Claims Act is the federal legislation that allows parties claiming to have been injured by negligent actions of employees of the United States to file claims against the federal government. The Act also provides authority for the federal government to defend against such claims. In 1988 and again in 1990, Congress extended the Federal Tort Claims Act to negligent acts of Tribal contractors carrying out contracts, grants, or cooperative agreements pursuant to Public Law 93–638, the Indian Self-Determination and Education Assistance Act [25 U.S.C. 450f (d) and 25 U.S.C. 458aaa–15].
Who's Covered by the Federal Tort Claims Act?
In general, the following people are protected from personal liability under the Federal Tort Claims Act when they are acting within their scopes of official duty:
- federal employees,
- tribal employees,
- Public Health Service officers, and
- certain contractors.
Tribal Employees: To be covered by the Federal Tort Claims Act, a tribal employee must be acting within the scope of his or her employment and within the scope of the Tribe’s contract or compact with the Indian Health Service.
Personal Services Contractors: A personal services contractor under contract with the Indian Health Service may also be covered if the contract creates a de facto employer-employee relationship and if the services provided are within the scope of employment pursuant to the personal services contract. The Indian Self-Determination and Education Assistance Act (ISDEAA) also extends Federal Tort Claims Act coverage to an individual under a personal services contract with a Tribe if the individual is acting within the scope of his or her employment (pursuant to the Tribe’s ISDEAA contract) and if the service is provided in a facility owned, operated, or constructed under the jurisdiction of the Indian Health Service.
Independent Contractors: Previously, health care providers working at Indian Health Service or Tribal facilities under non-personal services contracts—such as locums tenens providers—were generally not covered under the Federal Tort Claims Act and had to secure their own malpractice insurance. However, the recently passed 25 U.S.C. 1680c(e) may extend Federal Tort Claims Act coverage to these “non-Service health care practitioners” who are given clinical privileges and who provide health care services to patients eligible for services from the Indian Health Service or under an ISDEAA contract.
Students and Residents: Students are usually not covered under the Federal Tort Claims Act and must have verified, private liability coverage extended from their training programs. A resident doing rotations at an Indian Health Service facility must also have verification of medical malpractice insurance coverage. A collaborative agreement with the training institution should state that the residency’s program liability insurance will be responsible for any acts of professional negligence. Alternatively, a resident can establish a “federal employee” relationship to allow for Federal Tort Claims Act coverage via a personal services contract.
VOLUNTEERS: The IHS has the authority to utilize volunteer services. See 42 U.S.C. § 217b. However, the language of § 217b does not provide FTCA coverage for injuries caused by volunteers performing services for the Department of Health and Human Services (HHS).
Who’s Not Covered: A provider who does not come under the Federal Tort Claims Act umbrella can be sued individually in State court for alleged negligent acts committed while working in an Indian Health Service or a Tribal facility.
Note: It’s not always clear who’s covered or not by the Federal Tort Claims Act. Whether or not you’re protected from liability is, in the end, determined on a case-by-case basis by the Office of General Counsel of the U.S. Department of Health and Human Services and by the courts.
Negligent acts or omissions committed by a covered employee mentioned above that occurred within the employee’s scope of official duties (i.e., employment). Negligent acts or omissions that occur afterhours or offsite are usually not covered by the Federal Tort Claims Act unless part of one's official duties. The Act does not provide coverage for intentional or deliberate torts, such as battery or fraud.
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