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Personal Injury and Property Claims Against the Government

Honorably discharged Veteran Peter Brown walked in to the VA Medical Center for an operation to remove shrapnel from his leg and repair the muscle and tendons of his knee, which was injured while in combat. Several weeks later, he was rolled out of the VA Medical Center in a wheel chair, unable to walk or move his leg. A defective tourniquet, negligently applied resulted in serious and permanent nerve damage to his leg.

It is well-known in the military-affiliated community that a veteran may file a claim with the Department of Veteran’s Affairs (VA) for a service-connected disability or an injury (“additional disability”[1]) incurred while undergoing treatment or training at a VA. However, it is less well-known that a veteran may also file a claim for this same post-service injury under the Federal Tort Claims Act[2] (“FTCA”).

Captain A. Johnson was on active duty with the United States Army at the Walter Reed Army Medical Center. Being a team player, she donated blood to a public blood drive sponsored by Walter Reed. At the time, she was informed that her blood would be subjected to routine screening for the AIDS virus. Several days later, Walter Reed doctors and other hospital personnel informed her that she had tested positive for Acquired Immune Deficiency Syndrome (AIDS). Soon after, Johnson discovered that she was several weeks pregnant. Doctors at Walter Reed advised her that her child would most certainly be born with AIDS and would not live beyond five years. The doctors urged her to have an abortion rather than to carry her child to term. As a result of this counseling, and for no other reason, she had an abortion. Two months later, she was informed by Walter Reed doctors that there had been an "error" in the "paperwork" and that she did not have AIDS. A. Johnson had donated her blood to a public blood drive. She was under no military orders or compulsion to donate blood at Walter Reed.

Sergeant Major Fleming, U.S. Army, was stationed at Fort Knox, just outside of Louisville, Kentucky. He lived in Louisville, about a forty-five minute drive from the base. At around 4:40 a.m. in September, SGM Fleming was driving to a sit-down breakfast at a restaurant. He did not make it. At the intersection of Ferndale and Bardstown roads, a U.S. Postal delivery truck ran a stop sign and struck Fleming's car. Fleming was not on duty at the time and was not required to be at the base until 8:00 a.m. Fleming's "ultimate destination" that morning was Fort Knox. Fleming was injured on his own time, miles from the base, during an activity--driving to get something to eat at a Louisville-area restaurant--that had no relationship to his military service.

Serving military members, or their next of kin, normally may not file a claim against the government for the service member’s injuries or for a claim derived from the service member’s injuries. This is because the U.S. Supreme Court ruled in the case, Feres v. U.S., 340 U.S. 135, (1950)[3], that Congress has provided compensation for the serviceman’s death and disability under other laws. For these service members, however, the Court found that the they were not conducting a distinctly non-military act, were not under an order to conduct the activity, the activity was not intended to benefit the military, and the activity did not occur on military property nor was it a distinctly military activity.

In these cases, the claimant brought a Federal Tort Claim against the government, which was initially denied. Each then brought a law suit and won, or achieved a monetary settlement before conducting a full trial. In fact, any U.S. citizen has a statutory right to compensation or money damages under the FTCA for an injury suffered from any negligent act or omission committed upon them by an U.S. government employee while the employee was performing their duty.

This article explains the essential requirements for filing a FTCA claim, which are a: Proper Claim, Proper Claimant, Proper “Tortfeasor”, Proper Procedure, and if necessary, Proper Lawsuit.

Proper Claim. A claim against the government is or proper if: 1.) It is caused by the negligent or wrongful acts or omissions of military personnel or civilian employees of the government; 2.) While acting within the scope of their employment; 3.) Under circumstances in which the United States, if a private person, would be liable to the claimant; 4.) In accordance with the law of the place (state) where the act or omission occurred; and 5.) If the harmful act is not an “exception” identified by Congress.

A claim of medical negligence may be proper claim if the care provider deviated from the appropriate standard of medical care. However, Congress has also decided that other claims against the person or a person’s property may be compensable by the government. Retired service members, military family members, veterans, and civilians may also recover under the FTCA for other personal injuries and loss or damage to their property inflicted by the U.S. government or by the negligent acts or omissions of its employees. It is important to note however, that Congress specifically listed certain types of acts and resultant injuries which are not compensable under the FTCA.[4] Generally, intentional “torts” or injuries may not be claimed. There are limit