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What to Do If You Are Sued Individually

Section Thirteen

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 or contract. 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.

The Public Health Service Act, the Indian Self-Determination and Education Assistance Act, and the Indian Health Care Improvement Act provide FTCA coverage for certain IHS or P.L. 93-638 health professionals when they are 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.

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, 330 C Street, S.W., Switzer Building, Suite 2600,Washington, D.C. 20201; Telephone (202) 619-2155

The following materials must be e-mailed as soon as possible to (the HHS Office of General Counsel FTCA e-mail inbox):

  • 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.
  • Section 14: Risk Management DOs and DON’Ts