Written by attorney Joseph Jonathan Brophy

Federal Tort Claims

A tort claim is essentially a claim for damages arising from some form of negligence. Tort claims against the United States are governed by the Federal Tort Claims Act (“FTCA"), 28 USCA §§ 2671 ff. Common tort claims against the United States include motor vehicle accident claims against the Post Office and medical malpractice claims against the VA, and increasingly, against federally funded health clinics. Active duty military personnel may not sue the United States for any injuries or death incurred in the line of duty.

Procedures under the FTCA are not complicated, but they must be followed to the letter, or the claim may be prejudiced or even dismissed. The information given below is not intended to be an instruction manual for claims, and should not be relied on by pro se claimants. Indeed, because of the highly technical and unforgiving requirements of the FTCA, it is strongly recommended that those with potential claims always retain experienced counsel as early in the process as possible.

The first step in an FTCA claim is filing a Notice of Claim known as a Form 95 with the agency claimed to be responsible. The Form 95 is not complicated, but it is required that all of the information on the form be provided, including the amount of money damages claimed for each item of damage. The amount claimed on the Form 95 limits the amount that may later be demanded in a lawsuit. The Form 95 must be filed within two years of the incident giving rise to the claim in almost all cases.

After the agency receives the Form 95, it may request documentation of the claim such as accident reports, bills and medical records. Failure to provide information to the agency will result in denial of the claim. The agency then performs an administrative review process. There is no time limit on how long this process may take. At some point in the administrative review process, the agency may offer the claimant a settlement, or may reject the claim. After the administrative review process is completed, or earlier with the permission of the agency, the claimant may commence a lawsuit against the United State, not against the agency or its employees. If the claim is rejected, the action must be commenced with six months thereafter.

A lawsuit brought under the FTCA follows the Federal Rules of Civil Procedure, but there are a couple of important procedural differences from other types of Federal cases. There is no jury- FTCA cases are tried by a US District Court judge only. FTCA cases are defended by the US Attorney’s office, and are generally defended vigorously. The claimant’s attorneys’ fees are limited to 20% if the case is settled in claim, and 25% if a lawsuit is filed.

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