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Medical Malpractice Claims Under the Federal Tort Claims Act
Medical Malpractice

Medical Malpractice Claims Under the Federal Tort Claims Act

Most medical malpractice claims are filed and litigated in Maine Superior Court, following the specialized pre-litigation screening panel procedures outlined in the Maine Health Security Act. However, due to the way that healthcare services, particularly in rural Maine, are provided, a growing number of claims must be litigated in federal court pursuant to the Federal Tort Claims Act. As if all this is not confusing enough, some cases are subject to both systems.

The Federal Tort Claims Act

Under the Federal Tort Claims Act, the federal government is subject to liability in tort actions where private entities would be subject to liability under a state law cause of action. Because Maine law provides a cause of action for medical malpractice, the Federal Tort Claims Act likewise permits such claims in Maine where the medical provider is part of the federal government.

While the substantive law that governs medical malpractice claims is the same whether the claims are brought under state or federal law, the procedural requirements of the FTCA are quite different.

Because of the differing procedural requirements, it is critical at the outset to identify whether a case will be subject to federal law, state law, or possibly both. The case will be subject to federal law if the medical provider is a department or subdivision of the United States, or if the provider is a federally funded healthcare facility as defined by statute. In Maine, the largest US government provider is the Togus VA Medical Center. This is a large medical facility that provides a wide range of services to veterans, from primary care and mental health to surgery. Over our careers, we have handled a number of significant cases involving veterans who received negligent medical care and treatment at Togus.

Maine also has over 100 federally funded healthcare facilities, called Federally Qualified Health Centers (or “FQHCs”) that are also subject to the FTCA. In essence, because these institutions provide care to underserved populations, the federal government agrees to defend them in malpractice lawsuits. Typically, you can spot an FQHC by its name, which typically contains a phrase similar to “community health services” or “regional health services.” A current list of federally funded healthcare facilities can be found at:

When the alleged negligence occurs at a US government facility or federally funded healthcare facility, the proper defendant in the case is the United States of America. These cases must be filed in US District Court, rather than Maine Superior Court. At least by custom, these cases are not subject to the pre-litigation screening panel requirements of the Maine Health Security Act.

Deadlines for Filing Claims

One of the critical differences between state and federal malpractice claims pertains to filing deadlines. Under Maine law, malpractice plaintiffs have three years from the date of the alleged malpractice event to commence an action. As we noted in a previous article, this deadline applies even in wrongful death cases because the court has determined that the three-year medical malpractice statute trumps the two-year wrongful death deadline.

By contrast, the FTCA provides for a shorter, two-year deadline. That said, unlike state claims, the FTCA also has a discovery rule, as well as a longer six-year deadline for fraudulent concealment claims. A “discovery rule” means that the cause of action does not accrue until the claimant knows, or reasonably should know, of the medical negligence. While that discovery rule may seem to expand deadlines well beyond the three-year statute of limitations under Maine law, Maine’s three-year deadline has been interpreted to be a “statute of repose,” meaning that it is intended to provide an outside limit and is not necessarily subject to expansion through application of the discovery rule. See Wood v. United States, 2016 U.S. Dist. LEXIS 13689 (D. Me.) (holding that Maine’s three-year medical malpractice statute of limitations is a statute of repose that bars claims brought more than three years from the date of the malpractice at issue).

Pursuant to the Maine Health Security Act, a medical malpractice action brought under state law claim is commenced by filing a Notice of Claim in Maine Superior Court. By contrast, federal malpractice claims under the FTCA is commenced by serving a Standard Form 95 on the proper departments of the United States government. 28 C.F.R. § 14.2. The Form 95 must detail the allegations of malpractice, and must request a “money damages in a sum certain.” Id. Typically, the Form 95 must be served within two years of the alleged malpractice event.

Once the Form 95 is served, the United States is allowed six months to review and evaluate the case. During that six-month review period, the claimant is not permitted to file suit or otherwise move forward with the case. 28 U.S.C. § 2675(a). During that review period, the United States may request the claimant’s medical records and other information supporting the claim. Although it is rare, in cases of clearcut negligence and well-defined damages, the United States may transmit a settlement offer. Alternatively, the government may issue a denial letter, rejecting the claim. Often, the government does neither of these things and the six months simply elapses without any final determination.

After the government issues its denial letter or the six months expires, whichever is earlier, the claimant is permitted to file her suit in US District Court. 28 U.S.C. § 2675(a). If the United States has formally denied the claim, the claimant has only six months from the denial to commence the claim in court. 28 U.S.C. § 2401(a).

Other Procedural Differences

In addition to differences regarding deadlines and how to commence an action, there are other procedural differences because medical malpractice claims brought under the Maine Health Security Act and the FTCA. One important difference is that an FTCA claim is capped at whatever monetary demand amount is included with the Form 95 notice, unless you can later meet your burden of proving a substantial change in circumstances. For example, if you demand $1 million in the Form 95 notice and later receive an award following trial of $10 million, the judge will be forced to reduce the award to the Form 95 demand figure. Because of this, it is critical to always put a demand amount in the Form 95 that reflects the absolute maximum value of the case. There is no downside or penalty to a demand figure that is too high, only a penalty for one that is too low.

The FTCA also imposes caps on attorney’s fees. The attorney’s fees are capped at 25% for cases that are placed in litigation, and 20% for claims that are settled pre-suit. 28 U.S.C. § 2678. There are also important differences relating to recoverable costs and pre- and post-judgment interest.

Lack of a Jury

Perhaps the most significant procedural difference between state and FTCA claims is that the FTCA does not permit a trial by jury. FTCA claims are presented to a judge at a bench trial. 28 U.S.C. § 2402.

Litigation Considerations

FTCA claims are litigated in federal court. The cases are defended by the Office of the United States Attorney for the District of Maine. The substantive law of medical malpractice, as well as the medical standards of care, are analogous to state law malpractice claims. Federal claims, however, are subject to the Daubert standard for expert admissibility, so it is important to identify and prepare experts with this in mind.


Although FTCA cases are defended by the US Attorney’s Office, settlement decisions are typically made through the agency or government department which is the target of the case. In our experience, the US Attorney’s Office is afforded only limited settlement authority. In recent cases, we have been told that the cap on their local settlement authority is $1 million. For a case to settle beyond the local settlement authority, there must be approvals at a higher level within the particular agency involved and/or the Department of Justice. Because this is the federal government, these types of approvals can take a long time. In short, if you want an opportunity to settle the case at mediation for an amount above the local settlement authority, you need to begin working on this and obtaining the needed authority long before mediation.

When a settlement involves payment for future medical and life care needs, the government will likely insist upon a trust with a reversionary interest after your client dies. These federal government trusts can be quite restrictive, and it is important, therefore, to review the trust documents carefully and to make sure that it will truly afford your client an opportunity to access trust funds to pay for their real future medical and life care needs.

Combined State and Federal Cases

Many medical malpractice cases involve multiple defendants, all of whom were involved in different aspects of the patient’s care. In such circumstances, some of the medical providers may work for a FQHC, while others may be employed by an entity governed by state law. In such circumstances, a claimant may need to file claims both under the Maine Health Security Act (in state court) and under the Federal Tort Claims Act (in federal court). Once the state claims have exhausted the pre-litigation screening panel process, it may be possible to consolidate all of the claims for trial in the federal action. If that occurs, the parties may have a right to have the state claims decided by a jury, while the federal claims are decided by the judge.

Discuss Medical Malpractice Claims Under the Federal Tort Claims Act with an Attorney

If you need legal guidance with your medical malpractice case, or have further questions about medical malpractice claims under the Federal Tort Claims Act, Gideon Asen LLC is the call to make. Our seasoned attorneys have extensive experience handling these kinds of cases, and could help you achieve the most favorable outcome possible in your unique situation. Contact our firm today to learn more during an initial consultation.