Memorandum - Federal Tort Claims Act Assistance

TO:
Area Chief Medical Officers
Area Directors
Area Executive Officers
Hospital/Clinic Chief Executive Officers

FROM:
Susan V. Karol, M.D.
Chief Medical Officer

DATE: August 11, 2010

SUBJECT: Federal Tort Claims Act Assistance

The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2401(b), 2671–80, is the Federal legislation that allows parties claiming to have been injured by negligent actions of United States employees to file claims against the Federal government. The FTCA also provides authority for Federal agencies to “consider, ascertain, adjust, determine, compromise and settle any claim …” filed against it. See 28 U.S.C. § 2672. The Public Health Service (PHS) Act, codified at 42 U.S.C. § 233a, extends FTCA coverage to PHS commissioned officers and employees. In 1988 and again in 1990, Congress extended the FTCA to apply 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.

Because the Indian Health Service (IHS) is a division of the U.S. Department of Health and Human Services (HHS), medical malpractice claims against IHS or Tribal employees are covered under the FTCA. Attorneys in the HHS Office of the General Counsel (OGC) provide the legal defense of the government. Once OGC receives a claim against IHS, it will request relevant medical records and supporting documents from the site where the alleged incident occurred. The IHS Risk Management Program is responsible for coordinating the clinical peer reviews of all medical malpractice tort claims filed against the Federal government that involve care provided at facilities directly operated by the IHS or by a Tribe carrying out contracts, grants, or cooperative agreements pursuant to Public Law 93–638. The IHS and OGC have only six months, by law, to evaluate tort claims from both the medical and legal perspectives before the claimant can file suit in Federal court. Obtaining medical records and a medical staff peer review in a timely manner is critically important. Therefore, I am requesting that each IHS and Tribal health care facility respond to these document requests within 45 days upon receiving them.

For assistance, please contact Ms. Linda Vincent at the HHS OGC claims office. Ms. Vincent may be reached by phone at (202) 205-6070, by e-mail at linda.vincent@hhs.gov, and by mail at General Law Division, Claims and Employment Law Branch, 330 Independence Avenue, S.W., Room 4256, Washington, D.C. 20201. Dr. Paul Fowler is also available at (301) 443-6372 or by e-mail at paul.fowler@ihs.gov if you have any questions or need additional information regarding our IRS Risk Management Program. In addition, please visit our new IHS Risk Management Web site at www.ihs.gov/RiskManagement for more information about FTCA coverage and claims.