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Medical Malpractice Actions under the Federal Tort Claims Act

Generally, there is a waiver of liability for the malpractice committed by employees of the United States government pursuant to the Federal Tort Claims Act (FTCA). The government is substituted for the physician as a party in medical malpractice actions, and the remedy against the government is exclusive. The federal courts have sole jurisdiction in cases under the FTCA, and a judge without a jury tries them.

Before an action under the FTCA reaches a court, the injured party must submit a claim to the appropriate administrative agency. If the agency does not make a final disposition on the claim within six months after its filing, the plaintiff may file an action in the U. S. District Court. If the agency denies the claim, the plaintiff has six months to file the action in court.

Under the FTCA, an injured party may not file a claim against the government if it has not been presented to the proper administrative agency within two years after the claim has accrued. The continuous treatment doctrine applies against the government and serves to toll the statute of limitations until all treatment relating to the original injury is completed. The statute of limitations is not tolled because of a patient's minority, and parents' knowledge of a claim is imputed to their child. Mental incompetency will also not operate to toll the statute of limitations unless the incompetency prevents the patient from discovering or understanding the cause of his or her injury.

Malpractice actions under the FTCA are specifically barred when the injured party is on active duty with the military at the time of the incident. However, the statute does not bar actions by military dependents for malpractice or by service personnel who were not on active duty at the time of the malpractice.

The government is not liable for the medical malpractice of its employee physicians when the malpractice claim arose in a foreign country. The federal courts are split as to whether a malpractice action may be maintained directly against the physician when there is no claim against the government because the claim arose in a foreign country.

In addition, the government is not liable for malpractice claims arising from an employee's discretionary conduct. For an activity to be discretionary, it must involve policy making on a broad level, and the court usually defines this term very narrowly. Further, the waiver of immunity to physicians under the FTCA does not include any claims arising out of assault or battery.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.

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