Trial Magazine

Tragically, those who have served our country don’t always have access to the best—or even standard—medical care through the U.S. Department of Veterans Affairs (VA) hospital system. Servicemembers and their families often must travel extensive distances for routine and acute treatment at VA facilities. What happens when that treatment falls below the standard of care and causes injury or death?

Servicemembers and their families usually hold the VA medical system accountable for substandard care through the Federal Tort Claims Act (FTCA), which created a limited exception to sovereign immunity by making the federal government a self-insurer and recognizing liability for the negligent acts or omissions of its employees acting within the scope of their official duties.¹ The United States, not the employee, is liable to the same extent an individual would be in like circumstances.² But the FTCA has some special features you should know about before accepting a case.

Preliminary Steps

In addition to the ordinary investigative steps in medical negligence claims, FTCA claims involve several important considerations.

---

Not all military personnel can file an FTCA claim for substandard medical care. Under the Fares doctrine, FTCA claims are prohibited for care received while on active duty.

---

Potential plaintiffs. Not all military personnel can file an FTCA claim for substandard medical care. Under the Feres doctrine, FTCA claims are prohibited for care received while on active duty.³ This includes wrongful death claims by families of active-duty servicemembers who died because of other soldiers’ negligence, incidents overseas, negligent medical care, or inadequate response to service- or battlefield-related injuries. Such claims are limited to military survival benefits.

Under the FTCA’s “foreign country” exception, there is no remedy for military personnel who received substandard care in hospitals outside the United States, even if the medical care was administered on a U.S. base.⁴

---

The United States is not responsible for all care provided at VA facilities, only for its employees' actions.

---

Potential defendants. Under the FTCA, the United States is not responsible for all medical care provided at VA facilities, only for its employees’ actions.⁵ To determine whether the wrongdoer is an employee of the United States or an independent contractor, contact the local U.S. attorney’s office (USAO) or VA regional counsel’s office and ask. You also may send a Freedom of Information Act request to the VA for contracts and employment records.

Whether the provider is an employee or independent contractor is a question of federal law determined by many factors about who controls the provider’s work.⁶ For instance, the court will examine whether the provider has a contract with the government and, if so, its terms; whether the provider has administrative duties at the VA or a federal facility; who withholds the provider’s taxes; and who pays malpractice insurance premiums.⁷ These “control test” factors are case specific, and no one factor is determinative.⁸

If the health care provider was an employee at the time of the care, then you have a potential FTCA case, and the appropriate defendant is the United States. Keep in mind that the employee also must have been acting within the scope of employment as a medical professional.⁹ If the health care provider is an independent contractor, you may pursue that defendant as you would any other health care provider under state medical malpractice laws.

If you cannot confidently determine someone’s employment status or if you anticipate a dispute, protect the statute of limitations by filing a case naming that individual as a defendant, just as you would if the FTCA was not involved. Many times, the underlying statute of limitations may run before you meet all the administrative requirements under the FTCA, so track those dates carefully.

Presuit procedural hurdles. Every FTCA claim begins with an administrative phase that follows the procedure in 28 C.F.R. §14.2. This includes filing within the required time frame, presenting the claim to the correct agency, providing the information required on Form 95 (party names, allegations, required signatures), and making a claim for specific damages.¹⁰

If you must amend your claim, do so during the administrative process.¹¹ If you wait until the judicial process begins, it may be too late.¹² If the case is not resolved during the administrative process, be prepared to start litigation quickly. Federal trials and discovery time lines often arrive much faster than in most state courts.

Be Ready for Litigation

Once you have exhausted the administrative process and filed your case in federal court, the local USAO will represent the United States. The federal government has made many materials, such as manuals and sample briefs, available to USAOs handling these claims.¹³ For this reason, no matter where you practice, you may encounter similar strategies across FTCA medical malpractice cases. Be prepared for this by taking proactive steps. Here are some potential defense moves to expect and suggestions about how to deal with them.

Government medical witnesses. In FTCA medical malpractice cases, plaintiffs usually receive most, if not all, of their medical care from VA or other federal facilities, such as military bases and community-based outpatient clinics. While this is convenient in some respects, such as when gathering medical records, it can be a challenge when communicating with and calling doctors as witnesses.

Even when a health care provider witness is no longer employed by the United States and his or her care is not at issue, the United States may take the position that you may not have ex parte contact with that witness, but that it may do so. The United States will likely have such ex parte contact without ever notifying you, and you may learn of the contact only when you reach out to the witness.

To combat this, consider taking two affirmative steps. First, invoke the plaintiff’s rights regarding doctor-patient privilege under any applicable state law, and do not consent to waiving that privilege.¹⁴ If the witness is testifying, this includes limiting the witness to what he or she contemporaneously documented in the record, rather than allowing the witness to testify about undocumented opinions, which may be detrimental to your case.¹⁵

In addition to any applicable state laws, invoke the American Medical Association Code of Medical Ethics: “Protecting information gathered in association with the care of the patient is a core value in health care.”¹⁶

Second, identify such witnesses early and often as the plaintiff’s witnesses. This can be done through the Federal Rules of Civil Procedure (FRCP), such as Rule 26(a)(1) for initial disclosures and Rule 26(a)(2) for expert disclosures. When filing disclosures, identify the witnesses, their credentials, and the substance of their expected testimony on behalf of the plaintiff. Doing this makes it clear to the court that these witnesses are plaintiff’s witnesses, thus providing additional justification for the court to limit the United States’ contact with the witnesses to the formal discovery process.¹⁷

Remember that whatever other protections the United States may have in FTCA medical malpractice cases—bench trials, no punitive damages—the Touhy rule is not one of them.¹⁸ In United States ex rel. Touhy v. Ragen, the U.S. Supreme Court reversed a contempt order for a federal employee who did not comply with a deposition subpoena.¹⁹ The employee did not comply because the agency for which the employee worked had a regulation that prohibited subpoena compliance without the agency head’s permission.

Many federal agencies now have so-called Touhy regulations to prohibit federal employees from testifying without prior approval from the agency head.²⁰ To apply, however, specific circumstances must exist, one of which is that the United States cannot be a party to the lawsuit. If it is a party, then the government is subject to discovery under the FRCP.²¹ Because the United States is the proper party in an FTCA case, Touhy regulations do not apply to current and former federally employed health care providers.

Mediation. Many federal courts make active use of settlement conferences with magistrate judges. If you find yourself facing court-ordered mediation in a case with significant damages, expect the USAO to arrive without enough authority to settle for an amount that would be appropriate for your client’s injuries—USAOs only have authority to settle for up to $1 million.²²

If you anticipate a settlement value above that amount, notify the court presiding over the mediation, and press for assurance that the United States will take the steps necessary to obtain sufficient authority. If the government provides you and the court with that assurance but fails to deliver, consider seeking sanctions.²³

Advisory juries. FTCA cases are tried by the court, not a jury. Ahead of any settlement discussions, expect the United States to comment that the case value is lower because a jury will not hear it. A case also may have problematic evidentiary issues that cannot be successfully resolved in limine because the judge will also be the factfinder. As a potential remedy, consider requesting an advisory jury. In an action not entitled to a jury trial, the court—by motion or on its own—may try any issue with an advisory jury under FRCP 39(c).²⁴

But expect the United States to withhold its consent. The thrust of its argument against an advisory jury will be that sovereign immunity precludes one and that the court lacks jurisdiction to order one under Article III of the U.S. Constitution. Fortunately, this issue has been resolved in favor of advisory juries in several circuits.²⁵

Also be prepared for the United States to argue that the time and resources required to empanel an advisory jury weigh against using one and that doing so would insert potential reversible error. Remind the court that the advisory jury will not be asked or allowed to make any binding determinations and that the cost of an advisory jury is similar for all cases, whether under the FTCA or not. By enacting Rule 39, the drafters implicitly determined that the benefits of having an advisory jury available to the court outweigh the costs.

Proposed findings of fact and conclusions of law. Despite best efforts at reaching a settlement, some FTCA cases will go to trial. Courts often require the parties to submit proposed findings of fact and conclusions of law.

Whether provided before or after trial, these submissions are a valuable advocacy opportunity. You may place the facts in an order and context that are most compelling rather than simply witness by witness or chronologically. You may emphasize how certain facts apply to the law. Proposed facts are essentially an opportunity to prime (if filed before trial) or remind (if filed after) the court about your case and to drive the narrative.

When determining what to include, focus on the strongest facts you can find. Comb the medical records thoroughly to assemble the best indisputable facts. Aim to ease the court’s job. It is better for the court to review facts that have been carefully sourced from medical records than to search for each fact within the records.

The United States likely will file relatively brief proposed findings of fact, reciting very little—if anything—about damages. This leaves a significant opening for the plaintiff. Do not overlook facts about damages that appear in the medical records, such as a patient’s and family members’ pain and suffering. These facts can be compelling: for instance, a patient with an “exquisitely tender” cancerous mass consistently expressing “unbearable pain.” When such facts appear in the medical records, they should not be ignored.

For all the challenges of FTCA cases, they also present attorneys an opportunity to help those who have done so much to serve us. We should prepare for and seize that opportunity.

---

Lauren E. Davis and Lauren M. Ellerman at Frith Ellerman & Davis in Roanoke, Va. They can be reached at ldavis@frithlawfirm.com and lellerman@frithlawfirm.com.

---

Notes

1. 28 U.S.C. §§2671 et seq. (2018).

2. 28 U.S.C. §1346(b)(1) (2018).

3. Feres v. United States, 340 U.S. 135 (1950). 

4. 28 U.S.C. §2680(k). Such claims must proceed under the Military Claims Act, 10 U.S.C. §§2733 et seq. (2018).

5. 28 U.S.C. §2671 defines an employee of the government and excludes “any contractor with the United States.”

6. Logue v. United States, 412 U.S. 521 (1973).

7. See Wood v. Stan. Prods. Co., Inc., 671 F.2d 825, 829 (4th Cir. 1982).

8. See Comty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989).

9. 28 U.S.C. §2675(a).

10. See 28 U.S.C. §§2401(b) (2018) and 2675(a); see also 28 C.F.R. §14.2 (2018); Laurie Higginbotham, Bringing Your Med-Mal Case in Federal Court, Trial 24 (Dec. 2013); Kenneth T. Lumb, Federal Tort Pitfalls, Trial 40 (May 2015). Form 95 is the standard form for presenting FTCA claims.

11. See 28 C.F.R. §14.2(4).

12. Henahan v. United States, 2016 WL 4540882 (W.D. Va. Aug. 30, 2016). 

13. See, e.g., U.S. Attorneys’ Manual, Title 4-5.220, Torts Branch Procedures—Substantive Considerations in FTCA Litigation, www.justice.gov/usam/usam-4-5000-tort-litigation (referring to “Torts Branch Monographs, and particularly the FTCA Staff’s Monograph ‘Checklist of FTCA Defenses’”).

14. See, e.g., Va. Code §8.01-399(D) (2018) (generally prohibiting a defense attorney from obtaining information concerning a patient from the patient’s health care provider without the patient’s consent, except through discovery).

15. See, e.g., Va. Code §8.01-399(B) (2018) (generally limiting disclosure of information by a patient’s health care provider to what the provider contemporaneously documented).

16. Am. Med. Ass’n, Code of Medical Ethics, Privacy in Health Care §3.1.1 (2016). 

17. See Noren v. United States, No. 7:15-CV-313 (W.D. Va. July 7, 2016) (ordering the United States to communicate with the plaintiff’s witnesses—VA health care providers—only through formal discovery, such as a deposition on the record and in the presence of the plaintiff’s attorney).

18. For a discussion of the Touhy doctrine, see William Bradley Russell, A Convenient Blanket of Secrecy: The Oft-Cited but Nonexistent Housekeeping Privilege, 14 Wm. & Mary Bill Rts. J. 745, 747–48 (2005).

19. 340 U.S. 462 (1951). 

20. See 45 C.F.R. §§2.1 et seq. (2018) (U.S. Department of Health and Human Services); 38 C.F.R. §§14.800 et seq. (2018) (Department of Veterans Affairs).

21. See United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958).

22. 28 C.F.R. pt. O, §1(b)(2) (2018).

23. See Gregory v. United States, No. 3:15-CV-129 (N.D. W. Va. Jan. 18, 2017) (granting the plaintiff’s motion for sanctions after the government appeared at mediation without a representative with full authority to settle).

24. Fed. R. Civ. P. 39(c). 

25. See, e.g., Andrade v. Chojnacki, 338 F.3d 448, 457 (5th Cir. 2003); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 2009 WL 1950743 (E.D. La. July 2, 2009); Coffland v. United States, 57 F.R.D. 209 (N.D. W. Va 1972).