months of date of denial. Trial is before a federal district judge (no jury trial under
FTCA). Also, remember that punitive damages cannot be awarded against the US.
(8)
Employee sued as an individual.
(a) Obtain commander's scope of employment certificate.
(b) Ask U.S. Attorney for representation.
(c)
Remove case to US District Court.
(d) Implead US Government under FTCA (note that under 28 USC
Section 2679, where the government employee was acting within the scope of his
employment, the EXCLUSIVE and sole defendant is the US itself, not the individual
employee.
(e) Dismiss state case against government employee.
1-8.
AVENUES OF RECOVERY APART FROM THE EDERAL TORT
CLAIMS ACT
Be aware that apart from the FTCA, there are claims statutes that may allow
some compensation to injured parties. They may not be able to file a multi-million dollar
civil lawsuit, but they can at least seek compensation for their loss. There are, for
example, several claims statutes set forth in AR 27 -20. These allow payment of claims
for damage to household goods in transit and other losses occurring on-post. Another
example is the Foreign Claims Act, which permits payment of claims by inhabitants of
foreign countries for injury or damage caused by US military or civilian personnel in
overseas locations. Another possible means of relief is the filing of a private relief bill in
Congress. This is how plaintiffs used to have to seek compensation, prior to the
passage of the Federal Tort Claims Act. In cases where parties cannot bring an action
under that law, they still may resort to this remedy.
1-9.
INDIVIDUAL PERSONAL LIABILITY OF MILITARY HEALTH CARE
PROVIDERS
a. Gonzalez Act, 10 USC Section 1089 (1976). Pursuant to this statute, under
the Federal Tort Claims Act, the sole remedy for negligent acts of military health care
providers acting within the scope of their duties or employment is against the US. The
bottom line: no individual liability.
b. 1988 Amendments to the THE FEDERAL TORT CLAIMS ACT. Pursuant
to 1988 amendments to the Federal Tort Claims Act (29 USC Section 2679), the
principal found in the Gonzales Act was extended to cover ALL government employees,
not just health care providers. Whether the individual is a doctor, nurse, physician's
assistant, or anything else, he is protected from personal liability (so long as he was
acting within the scope of his employment at the time of the accident/negligent acts).
MD0033
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