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Preserving Your Clients' Right to Recovery
The exclusive remedy for patients injured due to medical malpractice by federal employees acting within the scope of their employment is through the Federal Tort Claims Act (FTCA). Under the FTCA, the United States allows claims to be made against it in certain circumstances. However, because the FTCA is a waiver of sovereign immunity, strict compliance with the requirements for filing is necessary in order to preserve your clients' rights to recovery. Failure to be aware of these requirements could leave a plaintiff with little or no redress for his or her injuries.
Filing the Administrative Claim
Before any lawsuit can be properly filed, claimants seeking recovery from the United States are required under the FTCA to exhaust all administrative remedies. This means that an administrative claim must be filed with the government, and failure to do so will result in dismissal of any lawsuit on jurisdictional grounds. For example, in the case of Estremera-Velex v. Hospital General Castaner Inc., Civ. No. 02-1803 (JAG), 2002 U.S. Dist LEXIS 15375 6/28/02), the plaintiff brought suit against a hospital in the Puerto Rico Court of First Instance. Because the hospital was a federally supported health center, the federal government moved to be substituted as defendant and removed the action to the U.S. District Court for the District of Puerto Rico. After removal, the federal court dismissed the case because the plaintiffs had not made an administrative claim as required by the FTCA before filing suit.
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