Federal Medical Malpractice Claims: The FTCA

What Is the Federal Tort Claims Act?

The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671–2680, is the federal statute that allows private individuals to sue the United States government for the negligent acts of federal government employees acting within the scope of their employment.

Before the FTCA's enactment in 1946, the United States enjoyed sovereign immunity — it could not be sued without its consent. The FTCA represents a limited waiver of that immunity, allowing malpractice claims against federal healthcare providers under conditions specified by the statute.

Which Federal Healthcare Providers Are Covered

The FTCA covers malpractice by employees of the following federal healthcare programs:

Department of Veterans Affairs (VA)

VA medical centers, VA community-based outpatient clinics, and VA specialty care facilities. Veterans who receive negligent care at VA facilities must use the FTCA for tort claims. This is separate from and in addition to any VA disability compensation claim.

Department of Defense (DoD) / Military Treatment Facilities

Active duty service members cannot sue under the FTCA for injuries arising from their military service (the Feres doctrine). However, military dependents and retirees can bring FTCA claims for malpractice at military hospitals, naval medical centers, and other Military Health System facilities.

Federally Qualified Health Centers (FQHCs)

Community health centers that receive federal funding under Section 330 of the Public Health Service Act are deemed federal employees for FTCA purposes. This covers hundreds of community health centers across the United States that serve low-income and underserved populations.

Indian Health Service (IHS)

Tribal and IHS-operated healthcare facilities serving Native American and Alaska Native populations are covered by the FTCA.

National Health Service Corps (NHSC)

Clinicians who participate in the NHSC program and practice at approved sites may be deemed federal employees for FTCA purposes.

The FTCA Administrative Claims Process

Unlike state malpractice claims, which proceed directly to court, FTCA claims must go through a mandatory administrative process before a lawsuit can be filed:

Step 1: File an administrative claim (SF-95)

Within 2 years of the date the claim accrued, the plaintiff must file a completed Standard Form 95 (Claim for Damage, Injury, or Death) with the federal agency responsible for the healthcare facility where the malpractice occurred:

• VA malpractice: Department of Veterans Affairs
• Military facility: Department of Defense (specific branch)
• FQHC: Health Resources and Services Administration (HRSA)
• IHS: Indian Health Service

The SF-95 must include a sum certain — a specific dollar amount claimed. Failure to include a sum certain may invalidate the administrative claim.

Step 2: Agency investigation

The agency has 6 months to investigate the claim and either:

• Accept the claim and offer a settlement
• Deny the claim
• Take no action (which is deemed a denial after 6 months)

Step 3: File the lawsuit

If the agency denies the claim or 6 months pass without action, the plaintiff has 6 months to file a lawsuit in the appropriate federal district court.

If the plaintiff accepts a settlement, that is final and binding — the plaintiff cannot later seek additional compensation from the federal government for the same claim.

Key Differences From State Malpractice Litigation

No jury trial

FTCA cases are decided by a federal judge — there is no right to a jury trial. This is significant because malpractice verdicts from sympathetic juries can be substantially higher than bench decisions. Attorneys practicing FTCA malpractice must be experienced in bench trial advocacy.

Federal court venue

FTCA lawsuits are filed in the federal district court for the district where the acts or omissions occurred or where the plaintiff resides. Federal procedural rules (Federal Rules of Civil Procedure) govern.

State law standard of care

Despite the federal procedural framework, the applicable standard of care is governed by the law of the state where the malpractice occurred — the same standard that applies to private physicians in that state.

Damage caps

The FTCA does not impose a federal damage cap. However, the collateral source rule and certain limitations on future damages apply in the federal context.

No punitive damages

Punitive damages are expressly barred under the FTCA — only compensatory damages are available.

Settlement authority

The agency must obtain Department of Justice approval for settlements above a certain threshold. This can slow the settlement process.

The 2-Year Administrative Claim Deadline

The most critical deadline in FTCA malpractice is the 2-year administrative claim filing deadline. Unlike state statutes of limitations, which often have discovery rule exceptions, tolling provisions, and judicial discretion, the FTCA's 2-year requirement is strictly enforced:

• The 2 years run from the date the claim accrued — typically the date of the malpractice or, in discovery rule states, the date the plaintiff knew or should have known of the injury and its federal cause
• Missing the 2-year deadline permanently bars the claim
• The Supreme Court has strictly construed FTCA filing deadlines

If you received care at a VA hospital, military facility, or federally funded community health center and believe you were harmed by malpractice, consult an FTCA malpractice attorney immediately to determine your administrative claim deadline.

VA Malpractice: Special Considerations for Veterans

Veterans who receive negligent care at VA facilities face a unique legal landscape:

FTCA claim vs VA disability compensation

These are entirely separate legal mechanisms. A veteran can pursue both simultaneously:

• FTCA claim: compensates for the additional harm caused by the malpractice (beyond the underlying service-connected condition)
• VA disability compensation: compensates for all service-connected disabilities through the Veterans Benefits Administration

A successful FTCA settlement may affect the calculation of VA disability compensation in some circumstances — consult an attorney experienced in both VA benefits and FTCA claims.

The Feres Doctrine

Active duty service members injured by military negligence cannot sue under the FTCA for injuries that arise incident to military service (Feres v. United States, 340 U.S. 135 (1950)). This doctrine has been narrowed somewhat for medical malpractice cases involving active duty members treated at non-military facilities, but it remains a significant bar for many active duty malpractice claims.

Veterans and the VA MISSION Act

The VA MISSION Act (2018) expanded veterans' access to community care — allowing eligible veterans to receive care from non-VA providers at VA expense. Malpractice by a community care provider is generally governed by state malpractice law, not the FTCA, because the community provider is not a federal employee.