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Initiating Medical Malpractice Cases In Federal Court

By Jack Wurgaft
December 28, 2011

The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2401(b), 2671 et seq.; 2680, is the exclusive remedy for claims against federal employees and qualified health centers. Under the provisions of the FTCA, an action may not be instituted upon a claim against the United States for money damages caused by the negligent act of any federal employee acting within the scope of his employment, unless the claimant first presents the claim to the appropriate federal agency and the claim is finally denied by the agency in writing and sent by certified or registered mail. If the agency fails to make a final disposition of the claim within six months after it is filed, the claimant may deem the claim denied. 28 U.S.C. 2675(a).

The first concern for all practitioners handling medical malpractice cases in federal court, therefore, is the initial processing of the claim. Once it is determined that the health care provider is a federal employee, or the health clinic qualifies as a federally funded health center under 42 U.S.C. 233 (g); (n), a “claim for damage, injury or death” (Standard Form 95) must be filed within two years of the accrual of the cause of action. The Department of Health and Human Services oversees programs for federally supported health care centers and is the proper agency for presentation of the claim.

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