All Questions

January 5, 2023 | Gary Burger

Can You Sue The Federal Government When Injured?

Can you sue the federal government when injured? What are federal tort claims? If you get injured on federal property or by federal employees can you sue the federal government, or do they have sovereign immunity? How is this process different than a civil case against private persons?

Ordinarily, the federal government is immune to lawsuits under sovereign immunity, but the Federal Tort Claims Act (“FTCA”) provides exceptions to that doctrine.

For example, anyone can sue the federal government if they are injured on federal property (such as the post-office) or injured by a federal employee (such as being hit by a mail truck).

Also, veterans and their dependents can sue the VA for medical malpractice by their employees so long as the lawsuit complies with the special requirements set by the FTCA.

As an illustration, Genavieve recently obtained a $780K settlement in a medical malpractice case against the John Cochran Veterans Medical Center. The VA negligently discharged our client from the hospital while still impaired from sedation administered during a cardiac catheter procedure.

Our client passed out while driving home on his motorcycle and was involved in a horrific accident when he ran off the road.

Because this case was against the medical practitioners working at the VA and employed by the U.S. Government, the actual defendant was the United States of America.

Unlike typical civil claims, the FTCA requires that an injured party file an administrative claim with the VA (or other government agency) and receive a denial of that claim before filing suit in federal district court.

The administrative claim must be filed via the government’s “Standard Form 95” along with supporting documentation.

There, you must state the amount of monetary damages you are seeking – and start high - because this is the limit you can recover at trial - absent unusual circumstances.

This administrative claim must be filed within two years after such claim accrues, and then the agency has six months to respond by settling or denying the claim. If the agency denies the claim (and they probably will) a federal lawsuit must be filed within six months of that decision.

Unlike regular civil claims, all federal tort cases are bench-tried (no juries!) and attorney’s fees are capped at 25%.

The entire process involves an interplay between federal and state laws.

On the one hand, federal procedure applies, both through exhaustion of administrative remedies and through federal district court.

On the other hand, it is the law of the state where the injury occurred that determines whether the act or omission is negligent.

Recent 8th Circuit case law has also held that Missouri professional negligence damages caps apply along with requirements to file health care affidavits under Missouri Revised Statute §538.225 – even though the FTCA itself does not set forth damages caps.

If you have been injured by federal employees or on federal property, it is important to retain counsel that are familiar with the Federal Tort Claims Act so that all statutory requirements are met.

Here, we were thrilled with the result that we obtained for our client despite uphill liability challenges.