SF-95 Mistakes: The Filing Errors That End Federal Tort Claims

Standard Form 95 is titled "Claim for Damage, Injury, or Death." It is the form the government provides for presenting an administrative claim under the Federal Tort Claims Act. You do not sue a federal hospital the way you sue a private one. Under 28 U.S.C. Section 2675(a), a court has no power to hear an FTCA case unless the injured person first presented a written claim to the responsible federal agency and the agency either denied it or let six months pass without acting. The SF-95 is how most people meet that requirement.

Our article FTCA Claims: Suing the Government for Medical Negligence walks through the whole process, from sovereign immunity to the attorney fee cap. This piece narrows in on the one document that trips up more claims than any other. The form is short enough that people treat it as paperwork. The deadlines behind it are strict, and several of the ways to get it wrong are permanent, so the paperwork is really the case.

Everything below applies to the federal facilities that generate most medical claims: Veterans Health Administration hospitals, military treatment facilities, the Indian Health Service, federal prisons, and the community clinics known as federally qualified health centers, whose clinicians are treated as federal employees under 42 U.S.C. Section 233.

A claim counts as "presented" only when the responsible agency receives two things. The governing regulation, 28 C.F.R. Section 14.2(a), says a claim is deemed presented when a federal agency receives an executed Standard Form 95 or other written notification of the incident, accompanied by a claim for money damages in a sum certain. Courts read that as a two-part test. The claim has to give the agency enough written information to investigate what happened, and it has to state an exact dollar amount. The D.C. Circuit set out that framework in GAF Corp. v. United States, and other circuits follow the same two requirements.

One useful consequence of that rule is that the SF-95 itself is not mandatory. A signed letter that describes the incident and states a sum certain can satisfy the statute. In practice the form is still the safer choice, because it prompts you for each thing the regulation wants and it is the version agency adjusters expect. The point to hold onto is that filling in the boxes is not the goal. Giving the agency notice it can investigate, and a number, is the goal.

The block on the form that asks for the amount of the claim breaks the number into property damage, personal injury, wrongful death, and a total. That total is your sum certain, and leaving it out is the most common way to lose a claim that was otherwise on time.

The Fourth Circuit's decision in Kokotis v. United States Postal Service shows how unforgiving this is. The claimant filed her administrative claim within months of the accident but did not state a dollar amount. She only demanded a sum certain about four months after the two-year deadline had already passed. The court held the claim was barred. As the opinion noted, the SF-95 she signed warned about the sum certain requirement in boldface in several places, and the same warning appeared again in the letter that came with the form. The Fourth Circuit covers Virginia, Maryland, and West Virginia, so for claims arising in the DMV this is the binding rule.

"To be determined," a blank box, or a placeholder like zero does not satisfy the requirement. If you genuinely cannot value the harm yet, state your best supported maximum figure and amend it later, which the regulation allows at 28 C.F.R. Section 14.2(c). There is a second reason not to lowball the number. Under 28 U.S.C. Section 2675(b), the sum certain is generally the ceiling on what you can recover in court, with only narrow exceptions. Our FTCA overview covers that cap in more detail. Set the figure high enough to capture future medical care, lost earning capacity, and pain and suffering across the full life of the injury.

The instructions printed on the SF-95 put it plainly: a claim is deemed presented when it is received by the appropriate agency, not when it is mailed. There is no mailbox rule in FTCA practice. The postmark does not save you.

The consequence is direct. If the two-year deadline falls on a Friday and you drop the form in the mail on Thursday, the claim is late, because the agency will not have it in hand until the following week. People lose valid cases this way every year. Send the claim by a method that creates proof of the date it arrived, such as certified mail with a return receipt or a courier with tracking, and keep that proof. When a case turns on whether the agency received the claim in time, the delivery record is what settles it.

The claim has to go to the federal agency whose activity caused the harm. Under 28 C.F.R. Section 14.2(b), that is the agency to present to, and each one has its own claims office. Care at a VA hospital goes to the Department of Veterans Affairs. An injury at a military treatment facility goes to the claims office of the relevant service. A federal prison claim goes to the Bureau of Prisons. Indian Health Service and federally qualified health center claims are handled through the Department of Health and Human Services.

Here is the trap. A claim received by the wrong agency is not treated as presented until the correct agency receives it. The regulation does tell an agency that gets a misdirected claim to transfer it to the right one, but you cannot safely count on that happening before your deadline. If your two years is nearly up, sending the form to the wrong office can cost you the case even though you technically filed something on time.

The federally qualified health center situation catches people most often. Many patients have no idea that their neighborhood clinic is federally deemed, so they assume they are dealing with a private practice and either sue in state court or send the claim to the clinic's own insurer. Both waste time the two-year clock is still counting. Our FTCA overview explains how deemed clinics and the Indian Health Service fit into federal claims, and it is worth confirming a facility's status early rather than after a deadline has slipped.

The signature block has to be signed by the claimant, a duly authorized agent, or a legal representative. For a straightforward personal injury claim that is the injured person. For a death or a claim on behalf of someone who cannot sign, the authority behind the signature becomes its own issue.

In a wrongful death claim, the person who signs generally has to be the executor or administrator of the estate, or another person legally entitled to bring the claim under state law, and the regulations at 28 C.F.R. Sections 14.3 and 14.4 expect proof of that authority. A grieving spouse who signs and files before being appointed the estate's personal representative can hand the government an argument that the claim was never properly presented. For a minor or an incapacitated adult, a parent, guardian, or legal representative signs. Sorting out who has standing to sign, and getting that person appointed, takes time that the two-year deadline does not give back.

Attach what the regulations ask for. For a death claim that usually means a death certificate and evidence of the signer's authority. For an injury claim it means itemized medical bills and records that substantiate the harm and the amount. The form also warns, in the language every claimant signs under, that presenting a fraudulent claim carries civil penalties under 31 U.S.C. Section 3729 and criminal penalties under 18 U.S.C. Sections 287 and 1001. The lesson there is not fear. It is that the number and the facts need to be honest and supportable, not inflated.

The form asks you to state the known facts and circumstances of the incident. You do not have to plead legal theories, cite the standard of care, or list every act of negligence the way a lawsuit would. What you do need is enough for the agency to investigate: who was involved, what happened, when and where it happened, which facility, and what harm resulted.

The risk runs in both directions. Say too little and the agency, or later a court, may decide you never gave adequate notice of the claim at all. Describe the injury too narrowly and you can find yourself boxed into a single theory when the records later show something broader. The safe approach is to describe the injury and its cause completely and in plain terms, covering the harm you know about without guessing at facts you cannot support.

When the clock started is its own contested question. An FTCA medical claim accrues when the injured person knew of the injury and its cause, which is often earlier than a state discovery rule would set it. Our FTCA overview covers that accrual standard, drawn from the Supreme Court's decision in Kubrick, because it decides whether the two years has already run.

Filing the SF-95 does not open the courthouse door. You have to wait for the agency to issue a written denial, or for six months of silence to pass, before you can file suit under 28 U.S.C. Section 2675(a). Suing too early is fatal on its own. In McNeil v. United States, the Supreme Court threw out a suit filed a few months after the claim went in, even though the agency denied the claim while the case was pending. There is no exception for a deadline that is about to expire. The administrative process has to run first, which is one more reason to file the SF-95 early rather than near the end of the two years.

Two separate limits sit behind the SF-95, both in 28 U.S.C. Section 2401(b). The claim has to be received by the right agency within two years of when it accrued. Once the agency denies the claim, suit has to be filed within six months of that denial. Miss either window and the case is usually over.

The Supreme Court held in United States v. Wong that these deadlines are claim-processing rules rather than jurisdictional ones, which means a court can, in rare and extraordinary situations, forgive a late filing through equitable tolling. Tolling is the exception, not a plan. No one should treat it as a reason to wait.

Waiting is the expensive mistake here. The clock is running whether or not anyone has told you the facility was federal, whether or not you have the records, and whether or not you yet know a claim exists. If a VA hospital, a military treatment facility, or a federal clinic may have harmed you or someone in your family, the time to ask is now, while the answer can still help. Our article on the statute of limitations for medical malpractice explains how these deadlines work and how quickly they close.