Risk Management and Medical Liability
A Manual for Indian Health Service and Tribal Health Care Professionals
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Section Sixteen: What to Do If You Are Sued Individually
Reprinted from: “Medical Malpractice Claims, A Guide for PHS Health Professionals,” U.S. Department of Health and Human Service, Public Health Service, Office of the Assistant Secretary for Health, 29/3948 (undated). Contact information updated for 2006.
As IHS or P.L. 93-638 health professionals, you are protected from civil liability for injury to a patient that may occur while performing duties within the scope of your employment. It is still possible, however, that you may be served with a summons and complaint naming you as a defendant and alleging negligent conduct on your part. The civil action in usually brought for such reasons as:
- The claimant/attorney may believe that your conduct was not covered by the Federal Tort Claims Act;
- The claimant/attorney may be unaware of the immunity protection afforded IHS or P.L. 93-638 health professionals.
Such legal actions are usually brought in State court. There are specific statutes (28 USC 2679, 42 USC 233(a)-(f)) which apply to the situation in which a IHS or P.L. 93-638 health professional is sued for damages resulting from the performance of medical or related functions while acting within the scope of employment. The lawsuit would be removed from the State court, before trial, to the appropriate federal district court. The U.S. Government would then be substituted as the proper defendant and the action against the health professional would be dismissed. The suit against the United States would then be dismissed if no administrative tort claim had been filed with the agency.
Time is of the essence for having the civil action naming you as a defendant removed to a federal district court in order to substitute the U.S. Government as the defendant. Your failure to respond to the State action could result in a default judgment against you. Therefore, it is essential, in the event you are personally served with a summons and complaint based on your official duties, that you inform your supervisor (or the pertinent organization, if the alleged injury occurred at a past assignment) and deliver to the appropriate person or organization a copy of the legal papers served upon you, as soon as possible. Members of the National Health Service Corps practicing in non-PHS health facilities should notify their Regional Health Administrator.
Depending upon the established policies in the health facility concerned, either the supervisor or the person who has been designated to act as liaison with the Office of the General Counsel should immediately telephone the following office to report that an IHS or P.L. 93-638 health professional has been named in a civil action:
Chief, Claims and Employment Law Branch, Office of the General Counsel, DHHS, Cohen Building, Room 4758, 330 Independence Avenue, S.W., Washington, D.C. 20201; Telephone (202) 619-2155
The following materials will be required to be provided to the Office of General Counsel:
- A copy of the summons and complaint served upon the individual;
- An affidavit from the supervisor that the individual involved was acting within the scope of his/her official duties at the time the incident occurred;
- A letter from the individual requesting that the Justice Department represent him/her in the action;
- The address and telephone number (home and work) of the individual sued.
- If the employee is a member of the National Health Service Corps, serving in a non-IHS health facility, the following additional information may be requested:
- A narrative summary of what happened;
- Names, addresses, and phone numbers of witnesses and a summary of their statements, if possible.
- A copy of the pertinent medical records should be requested through appropriate officials of the facility.
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