More Traps for the Unwary: Problems Under the Federal Tort Claims Act

We have previously written about procedural problems that clients may face when dealing with claims against governmental entities. Specifically, if an individual has a claim against a city or county government, there are certain pre-suit, ante litem requirements that must be observed before suit can be filed. We have written about this in earlier articles and would refer the reader to the same. We have also written these procedural problems under Georgia’s State Tort Claims Act. Here, we write briefly to discuss some unique issues under the Federal Tort Claims Act (FTCA).
As we have indicated previously, the Federal Torts Claims Act also has an ante litem requirement. A form 95 Claim Form (or its equivalent) must be filed with the appropriate federal agency or department within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). It is also important that there be separate claims for each claimant that may have incurred damages as a result of the alleged wrongful conduct or negligent act of a government employee or agency. See 28 C.F.R. § 14.3(b). Also, only the United States of America may be named as a defendant in a lawsuit later filed, not the agency or the employee, and the suit must be brought against the United States within six month of the claim denial. See 28 U.S.C. § 2401(b).
Another unique provision of the Federal Tort Claims Act is that the courts in such matters apply the Federal Rules of Civil Procedure to procedural law but state substantive law to the alleged negligent act. For example, in a hypothetical medical malpractice case, if a doctor at the Veterans Administration Hospital, for example, allegedly commits malpractice in one jurisdiction, even though the plaintiff may reside in another jurisdiction and therefore have the right to file the claim where they reside under 28 U.S.C. § 1402(b), nonetheless, the malpractice claim will still be governed under the law of the place where the tort occurred. For example, here in Georgia, there is a requirement that an Affidavit be attached to any claim for medical malpractice in which a reviewing physician certifies that one or more negligent acts occurred which constitutes the alleged deviation from acceptable standards of medical care and skill. If such an Affidavit is not attached to a medical malpractice complaint, the complaint can be dismissed under Georgia law. Similarly, even though Federal Civil Procedure governs the rules of procedure for claims brought under the Federal Torts Claims Act, nonetheless, the careful practitioner must always look to state substantive law and make sure that state substantive law is followed in claims filed under the FTCA.
Our purpose in writing on this subject is simply to caution those who might seek to represent themselves with claims against either federal, state governments or local governments that they should be very careful in doing so due to the procedural requirements inherent in such claims. We would strongly urge any person with a claim against the government to confer with counsel before attempting to proceed on their own. Failure to do so could result in an unfavorable result.