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The Federal Tort Claims Act

Section Seven

This section is provided as guidance in response to frequently asked questions about the Federal Tort Claims Act. The reader is reminded that legal counsel should be sought whenever questions arise. Consult the appropriate HHS attorney representing your IHS Area Office.

Prior to 1946, the Federal Government could not, under common law principles, be held liable because of the doctrine of sovereign immunity. This doctrine emanated from the era when governments were monarchies, and it was considered that "the King could do no wrong." Under this doctrine, the United States Government could not be sued. In 1946 Congress passed a bill known as the Federal Tort Claims Act (FTCA).1 By this Act, the Federal Government gave partial consent to be sued for its torts. It provides that the United States may be liable for negligent torts occasioned by its employees (and certain contractors) while acting within the scope of their employment. In December 1988 and again in 1990, Congress extended the FTCA to negligent acts of Tribal contractors carrying out contracts, grants, or cooperative agreements pursuant to Public Law (P.L.) 93-638, the Indian Self-Determination and Education Assistance Act.2 Cases filed under the FTCA include all types of incidents involving personal injury, death, or property damage. Accordingly, it is under this Act that claims alleging negligent medical care are made against the Federal Government. Attorneys at the Office of General Counsel, Department of Health and Human Services (HHS), and the Department of Justice (DOJ) defend the actions for the United States.

Coverage: It is generally understood that the negligent acts or omissions committed by federal employees acting within the scope of their official duties are covered under the FTCA. Also federal employees assigned to a self-determination contractor under the Intergovernmental Personnel Act or commissioned officers detailed under a memorandum of agreement pursuant to section 214 of the Public Health Service Act are protected by the FTCA, as if they worked directly for a federal agency. The critical factor is whether, at the time of the alleged negligent act, the IHS or the Tribal program had the right to control or supervise the activity.

A personal services contractor under contract with the Indian Health Service (IHS) may also be covered if the contract creates a de facto employer/employee relationship and the services provided are within the scope of employment pursuant to the personal services contract. Independent contractors (those individuals working at IHS or Tribal facilities under non-personal services contracts (e.g. locums tenens providers from contracted agencies) are generally not covered under the FTCA and must carry their own malpractice insurance.

The legal extent of FTCA protection differs somewhat for the Tribal employee. Tribal employees are deemed to be federal employees for the purpose of FTCA coverage while acting within the scope of their employment in “carrying out” contracts/compacts under P.L. 93-638. This law also extends FTCA coverage to an individual under a personal services contract with the Tribe if the individual is acting within the scope of his/her employment pursuant to the Tribe’s P.L. 93-638 contract and the services are provided in a facility owned, operated, or constructed under the jurisdiction of the IHS.

It is important to understand that any final decision about whether or not an individual is protected from personal liability by the FTCA is a factual determination made on a case-by- case basis by the HHS Office of General Counsel, the DOJ, and ultimately by the courts.

Scope of official duties (employment): One must be working under the scope of their officially prescribed duties in order to be covered under the FTCA. Official duties are those performed in the course of one’s job, or some authorized activity reasonably associated with it. Whether the employee was acting within the scope of his/her employment is determined under the law of the State where the care was provided. The factors to be considered are: (1) whether the employee was doing the kind of work he/she was employed to do (as set forth in the position description or billet); (2) whether the work occurred at the expected time or place; and (3) whether the work was undertaken to serve the IHS or Tribe. Moonlighting and other outside work activities, even if authorized, may not be covered by the FTCA. Furthermore, the FTCA does not provide coverage for intentional (deliberate) torts of federal employees, such as battery or fraud.

Remedy: The injured party or representative cannot initially commence a lawsuit but must first file an administrative federal tort claim with the Office of General Counsel, HHS. In addition, the injured party’s exclusive remedy is to file a federal tort claim; no legal action can be taken against any IHS or Tribal healthcare employee that is acting with the scope of his employment or contract– that is to say, such employees are immune from civil liability.1 A further provision is that Congress made the law in the local jurisdiction the decisive factor in determining liability;3 therefore, a plaintiff may recover for a particular action in one state but not in another.

Statutes of limitations: Claims must be filed within two years of the incident or knowledge of the alleged injury; otherwise the statute of limitations expires, and the claimant has no recourse. Once the claim is filed, the claimant may not file suit for six months. If the case is not resolved during the government’s six-month administrative review period, the claimant may file suit at any time, unless the government denies the administrative claim, in which case suit must be filed within six months of the date of denial or the claimant can request reconsideration within six months of the date of denial.

Non-covered providers: Non- personal services contractors and other providers who do not fall under the FTCA umbrella can be sued individually in State court for alleged negligent acts committed while working within IHS or Tribal facilities. It is the responsibility of the governing body of each IHS or Tribal facility to ensure that all such providers verify their malpractice insurance coverage during the credentialing and privileging process.

1 28 U.S.C. §§1346(b), 2401(b), 2671-2680 Exit Disclaimer: You Are Leaving 

2 25 U.SC. § 5321 (d) and 25 U.S.C. § 458aaa-15 Exit Disclaimer: You Are Leaving 

3 Section 224 of the Public Health Service Act, 42 U.S.C. § 233 Exit Disclaimer: You Are Leaving 

Section 8: The Malpractice Tort Claim Review Process