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 limited exceptions including the tort of intentional infliction of emotional distress.

The claimant must rely on law of the state where the incident occurred to create a cause of action in order to recover under the FTCA. The injured party must file the claim with the proper government agency, that is, the department of agency which employs the government worker who committed the negligent act of omission, within two years after the event in order to preserve the claim. The claim must provide “sufficient notice” and a “sum certain” so that the government may conduct a complete and thorough investigation into the alleged negligent act, also called an “occurrence” or “incident”. The government agency normally has only six months to investigate the claim.

Proper Claimant. Almost anyone can file under the FTCA if, as previously described, they have a proper claim.[5] As we have seen, retired service members, military family members, veterans, and civilians may file a claim against the government for injuries they receive at the hands of a government employees and serving military members or their next of kin, usually 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. Service members may however, have a derivative claim for injury to their loved ones under certain circumstances. Moreover, neither Congress nor the courts have held that mere affiliation with the military is dispositive of the issues of jurisdiction or liability. Rather, the Court examines whether the claimant’s injuries occurred “incident to military service” that is, whether the claimant was involved in a military activity or functioning in a military capacity at the time the injury was incurred, so that the claim is barred under Feres. Accordingly, the proper focus of a legal analysis to determine whether a claim is proper under the federal statute and regulation, that is, whether there exist proper “jurisdiction” over the claim, is to analyze whether the activity from which the injury arises is “incident to service”.

When determining whether the claimant’s injuries were incurred from an activity incident to service, the courts consider various factors, with no single factor being dispositive. The courts examine:

· The type and location of activity in which the claimant was involved at the time of the injury;

· Whether the claimant had a relationship with the military at the time of the occurrence;

· The connection, if any, of the activity to the individual’s relationship with the military service, including, whether the activity was limited to military personnel and/or whether the claimant was taking advantage of a privilege or enjoying a benefit conferred as a result of military service; and

· The totality of the circumstances.

Proper Procedure. After first establishing that the claimant is proper and the claim is proper, the injured person must then submit the proper forms and follow the proper agency procedure in order to recover for his or her damages under the FTCA. The proper agency is that U.S. government entity or department that employs the person who harmed the claimant.

The law provides that the government has a right to demand the claimant’s full cooperation as it investigates the claim, including authorizing the release of medical records, investigations conducted by other organizations, and/or other personal information that may affect the determination of the claim. Such requests however, must comply with certain federal regulations and court decisions.[6] The government can delay the claim processing if the claimant fails to cooperate. The government claims adjudicator makes a determination of whether: The claimant has an injury or damages; The government owed the claimant a duty of care; Negligently breached that duty; and The breach resulted in the injury which is the subject of the claim. If the claim is denied, only then can the claimant sue the U.S. for the negligent acts of the government employee or tortfeasor in federal court.

Proper “Tortfeasors”. A “tortfeasor” is the actor who harmed the injured person or claimant. Determining whether the government employee is proper tortfeasor or a person who owes a duty of care to the claimant is a matter of federal, not state law. Categories of government employees that are potential tortfeasors include:

a. Military personnel who are serving on active full time duty in a pay status, including soldiers;

b. Military personnel who are soldiers of reserve units (other than members of the ARNG), including ROTC cadets who are reservists while they are at annual training, during periods of active duty and inactive duty training.

c. Military personnel who are soldiers of the ARNG while engaged in duty or training.[7]

d. Civilian officials and employees of both the DOD and DA.

Proper Lawsuit. If the injured party’s claim is denied, the claimant normally has up to six months to provide new evidence and request reconsideration of the claim by the agency or to initiate a lawsuit in the federal district court in the jurisdiction where the injury occurred. Such cases are heard by a federal judge alone without the benefit of a jury. The pre-trial procedures of a denied federal tort claim are nearly identical to those of any other federal case. They include deposing witnesses, that is, taking sworn testimony of eye witnesses and perhaps experts, requesting answers and answering written questions called interrogatories, affirming or denying requests for admissions or assertions of fact, and requesting and producing documents and other tangible evidence associated with the incident. The injured person may hire an attorney with experience in these matters to assist in determining whether he or she is a proper claimant, has a proper claim, and targets a proper government employee the care provider deviated from the appropriate standard of medical care to present a compelling claim. The attorney fees for services rendered are limited by FTCA to 20% of the recovery received from an administrative settlement of the claim, if the matter is settled through the concerned government agency’s claims service, or 25% of the recovery received from pre-trial settlement or post-trial judgment.

Conclusion. While almost anyone can file a claim under the FTCA, members of the military-affiliated community, that is, veterans, retired military, military family members, and in certain circumstances active military service members, have a statutory right to compensation or money damages under the FTCA for an injury suffered from any negligent act or omission of a U.S. government employee while performing their duty. The wise claimant will hire an attorney with experience in these matters to help the claimant/plaintiff determine whether he or she is a Proper Claimant, has a Proper Claim, a Proper “Tortfeasor”, follows Proper Procedure, and if necessary, institutes a Proper Lawsuit. Moreover, such an attorney can easily guide the claimant through the labyrinth of regulation and law to protect the claimant’s/patient’s interests including the right to the speedy and accurate processing of the claim, and ensuring that the information requested by the government while conducting its investigation is relevant, probative, and not unreasonably burdensome.

The author, Kevin P. Podlaski, B.S., J.D., LL.M., is with PODLASKI LLP, Attorneys at Law, Fort Wayne, Indiana, and admitted to practice in the states of Indiana and New Jersey, before various federal district courts, the Court of Criminal Appeals for the Armed Forces, the U.S. Court of Veterans Appeals and the U.S. Supreme Court. His practice areas include: Litigation, , including: Personal Injury and & Property Damage Claims, Affirmative Claims for Federal Statutory and Regulatory Violations, Military-Associated Law including Military Criminal Defense, Department of Defense Security Clearance Matters and Boards, Adverse and Corrective Administrative and Personnel Matters and Boards, Military Re-Employment Rights (USERRA) Veterans Claims and Boards, and Department of Defense Contracting for Sub-contractors. Kevin is a retired Judge Advocate who had a wide range of positions including, multiple assignments as a Staff or Command Judge Advocate with Airborne, Special Forces and Special Operations units. Kevin is a member of the American Legion, Veterans of Foreign Wars, member of the National Institute for Military Justice, and life member of the Special Forces Association. His military accolades include: Nominee USSOCOM’s Major General William F. Garrison Award for Legal Excellence in Support of Special Operations - 2001; Jumpmaster -1994; Master Parachutist - 1995; and various awards for military service, including the Department of Defense Meritorious Service Medal and U.S. Presidential Unit Citation.

[1] A veteran with a service-connected disability, an “additional disability” or injury from treatment at a VA medical center, or participation in a VA program, may file a disability claim under Title 38 U.S. Code, § (Section) 1151 and 38 Code of Federal Regulations § 3.361. [2]The additional disability award from the VA is off-set by the recovery of the award under the FTCA. Federal Tort Claims Act, Title 28 U.S. Code, §§ 1346(b) and 2671-2680. The FTCA provides limited waiver of sovereign immunity - without which the United States may not be sued. [3] Commonly referred to as the Feres Doctrine in legal parlance. The Supreme Court established the three broad rationales underlying Feres, namely, a claim may be barred only after examining whether: the activity was incident to service; military benefits were available [and applicable]; and military discipline was at issue. [4] Prohibited acts/claims are referred to as “exceptions” in the Federal Tort Claims Act for which the government does not waive its sovereign immunity. Those enumerated acts/claims are found at 28 U.S. Code § 2680h. [5] A notable exception is U.S. government workers if injured while performing their own duty as a government employee because Congress has provided for their compensation under a separate law Title 5 U.S. Code §§ 8101-8151 (1994). Federal Employees’ Compensation Act, (FECA). [6] The government agency investigating the claim must identify the specific documents or category of documents it wants and explain how each request comports with 28 C.F.R. § 14.4, that is, describe how the requested documents may aid the government in completing its investigating into the facts underlying the claim in determining its degree of liability in this matter. [7] Only Nation