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The FTCA and the Payment of Tort Damages

By Janice G. Inman

Federal government attorneys recently unsuccessfully attempted to convince a Federal District Court and the U.S. Court of Appeals for the Fifth Circuit to rewrite the terms of the Federal Tort Claims Act ('FTCA') to allow the creation of a reversionary trust rather than give a lump-sum award to pay for a medical malpractice plaintiff's future medical expenses. For its argument, the government relied on the FTCA and Louisiana state law, claiming that the federal
government should be treated in a like manner to state and private insurers ' which, in Louisiana, are allowed to pay for future medical expenses as they
come due.

In holding that no law authorized the creation of a reversionary trust absent the plaintiff's acquiescence, the Fifth Circuit fell into line with two other circuits' appellate courts in saying that Congress will have to change the FTCA before federal courts can order the creation of such a trust.

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