FTCA Claims: Suing the Government for Medical Negligence

The Federal Tort Claims Act is a narrow waiver of the federal government's sovereign immunity. In ordinary terms, the United States is normally immune from being sued. The FTCA carves out an exception that lets private citizens sue the federal government for the negligent or wrongful acts of its employees, acting within the scope of their employment, where a private person would be liable under the law of the place where the act occurred.

For medical malpractice, that usually means doctors, nurses, and other clinicians employed by a federal healthcare facility. The largest single source of FTCA medical claims is the Veterans Health Administration, which operates more than 170 medical centers. Other common federal facility types include military treatment facilities, the Indian Health Service, federal prisons, and federally qualified health centers (private clinics that receive federal funding under 42 U.S.C. § 233(g)-(n), whose clinicians are treated as federal employees for tort purposes).

Before you can file an FTCA lawsuit, you have to present an administrative claim to the agency involved. This is not a formality. Under 28 U.S.C. § 2675(a), a court has no jurisdiction over an FTCA suit unless the claimant has first presented the claim to the appropriate federal agency in writing and the agency has either denied it or failed to act within six months.

The standard form is Standard Form 95, available on each agency's website. The claim must include the factual basis and a "sum certain," an exact dollar amount of damages. The sum certain requirement comes from 28 C.F.R. § 14.2(a) and is one of the most common reasons FTCA claims are dismissed. If you state "to be determined" or leave the amount blank, the claim has not been properly presented and the limitations clock keeps running.

Once filed, the agency has six months to investigate and respond. If it issues a written denial, you have six months from the date of denial to file suit in federal district court. If the agency stays silent for six months, you can treat that silence as a denial and file at any time after.

This is one of the most expensive mistakes in FTCA practice. In McNeil v. United States, 508 U.S. 106 (1993), a pro se prisoner filed his FTCA suit four months after submitting his administrative claim. The agency denied the claim a few months later, while the suit was pending. The Supreme Court held that the early-filed suit was fatally premature and could not be saved by the later denial. The plaintiff had to dismiss and refile after the six-month period had run. By then, the statute of limitations had run too.

There is no "the agency obviously won't respond" exception, and no "but the SOL is about to expire" exception. If you have not waited six months and you have not received a written denial, you cannot file suit. The administrative process has to run its course.

The FTCA has two separate limitations periods, both in 28 U.S.C. § 2401(b). The administrative claim must be presented to the agency within two years of when the claim accrues. Once the agency denies the claim, suit must be filed within six months of the denial.

For years, courts treated both deadlines as jurisdictional, meaning a missed deadline killed the case regardless of circumstances. That changed in United States v. Wong, 575 U.S. 402 (2015), where the Supreme Court held that the § 2401(b) deadlines are claim-processing rules, not jurisdictional, and therefore subject to equitable tolling. Tolling is still rare and reserved for extraordinary circumstances, but it now exists.

Accrual in medical malpractice cases is governed by the federal discovery rule from United States v. Kubrick, 444 U.S. 111 (1979). The claim accrues when the plaintiff knows of the injury and its cause, not when they learn that the conduct was negligent. This is narrower than several state discovery rules and is a frequent source of dispute over when the clock started.

Under 28 U.S.C. § 2675(b), the dollar amount you state on the administrative claim is generally the ceiling on what you can recover in court. Two narrow exceptions apply: when increased damages are based on "newly discovered evidence not reasonably discoverable at the time of presenting the claim," or when there are "intervening facts." Both are read strictly.

Set the sum certain high enough to capture all foreseeable medical expenses, lost earning capacity, and pain and suffering, including projections over a child's expected lifespan in birth injury cases. Lowballing the agency to seem reasonable can leave seven-figure damages on the table that cannot be recovered later.

Amendments are allowed under 28 C.F.R. § 14.2(c) at any time before final agency action. An amendment restarts the agency's six-month decision clock, but it does not extend the two-year limitations period. If you submit an amended claim raising the sum certain a week before the SOL expires, you have still preserved the higher number.

FTCA cases borrow the substantive tort law of the state where the act or omission occurred. Standard of care, causation, damages categories, comparative fault and joint-and-several liability rules all come from state law. In a Virginia VA malpractice case, that means Va. Code § 8.01-581.15 (the Virginia medical malpractice damages cap) and Va. Code § 8.01-20.1 (the Virginia expert certification requirement) apply.

Federal procedural law governs everything else. There is no jury. FTCA cases are bench trials under 28 U.S.C. § 2402. There are no punitive damages and no pre-judgment interest (28 U.S.C. § 2674). Attorney fees are capped at 25% of any judgment or post-suit settlement and 20% of any administrative settlement (28 U.S.C. § 2678). Charging more than the cap is a criminal misdemeanor.

Two important limits trip up potential plaintiffs.

The Feres doctrine, from Feres v. United States, 340 U.S. 135 (1950), bars active-duty servicemembers from suing for injuries incident to military service. The Supreme Court has repeatedly declined to revisit it, including in cases involving military medical malpractice. The Richard Stayskal Military Medical Accountability Act of 2020 created a limited administrative remedy for active-duty military medical malpractice that runs parallel to the FTCA, but Feres otherwise remains a hard bar.

Veterans should also not confuse an FTCA suit with a 38 U.S.C. § 1151 benefits claim. Section 1151 provides VA compensation benefits for additional disability caused by VA medical care. It is a benefits claim processed by the VA itself, with its own damages framework. An FTCA suit and a § 1151 claim can be pursued in parallel, but they are separate proceedings with separate rules and separate decisionmakers.

From the cases that get referred in after problems develop, the most common procedural reasons for failure are:

Missing the two-year deadline because the federal discovery rule is narrower than state law. Failing to state a sum certain, or stating an unrealistically low one. Filing suit before the six-month wait expires (the McNeil trap). Naming the wrong defendant: the United States is the only proper defendant, not the VA and not the individual physician (the Westfall Act, 28 U.S.C. § 2679, requires this). And failing to amend the administrative claim when injuries develop after filing.

Each of these is preventable with FTCA-experienced counsel. None is recoverable once it has happened.

Call an attorney with FTCA experience early, not a general personal injury firm. The procedure is enough of a minefield that many otherwise excellent state-court trial lawyers decline these cases. Peter Anderson has resolved FTCA matters including a $1.5 million sepsis case and a $900,000 prostate cancer case against VA medical centers, and reads FTCA inquiries personally.

The clock started running when you knew or should have known about the injury and its cause. Don't wait to see if symptoms improve, and don't try to negotiate informally with the agency before preserving the administrative claim.