FAQ's
You need to know your rights, if you do not, you may lose them.
While there are general considerations that apply in every case; many
claims against the federal government made under the Federal Tort
Claims Act or Military Claims Act involve complex legal issues where
the answers are not always black and white. Each claim should be
evaluated on an individual basis.
The following "Frequently Asked Questions and Answers" may help you
decide to get a free consultation. They answer important questions in
this area of practice, but do not constitute legal advice or take the
place of your obligation to obtain legal advice tailored to the facts
of your particular case. To obtain specific advice, you should contact
us at 1-800-223-2890 or Email for a free, confidential
consultation.
- I was injured by a negligent military physician. What is a
federal tort claim and should one be filed on my behalf?
Answer: If you are the spouse or child
of an individual in the military and were injured by the
negligence of a military physician or any other federal employee
acting within the scope of his employment in the United States,
you may file a claim to recover money to compensate you for your
injury.
- I always thought I could not sue the federal government for
negligence. Can I?
Answer: You can in the appropriate case.
The federal government was immune from negligence (tort) actions
until 1946, when Congress enacted the Federal Tort Claims Act to
provide a right to recover damages from the United States for
injuries inflicted by the negligence of federal employees.
Although the Federal Tort Claims Act does not provide a right to
recover in all situations, you may be able to recover monetary
damages.
- I am an active-duty service member. I was told that I had no
right to recover on a federal tort claim. Is this true?
Answer: Not necessarily. The good news
is that active-duty service members have the same rights as
civilians to recover federal tort compensation for
negligently-inflicted injuries that are not considered to be
active-duty service-connected. For example, an active-duty service
member may receive monetary damages for injuries his or her
civilian spouse or child has suffered due to the negligence of
military physicians or other government employees. A claim based
on such injuries is viewed as deriving from injuries suffered by
the civilian.
- Within what time period must my federal tort claim be filed?
Answer: Federal law requires your claim
to be filed within two years of the date you knew or should have
known of the injury and its cause. State law limitation periods do
not apply. Consequently, if the injury was to a minor, you may not
rely on state statutes permitting a minor to postpone the filing
of suit until he or she becomes an adult. Failure to take steps to
promptly investigate the potential claim is known as "sitting on
your rights" and may be a valid reason for the United States to
deny your claim. In some instances, there are ways to extend
the period for filing a claim.
- Our child was born in a military hospital in Virginia over four
years ago and was just diagnosed with cerebral palsy. My husband and
I have been active-duty service members for many years and were
hesitant to file a claim. Are we out of time now?
Answer: Not necessarily. You should not
assume that your claims are time-barred.
As a civilian, your
child has a right to file a federal tort claim. The timeliness of
your child's claim depends on whether two years have expired since
the day you or your husband knew or should have known of your
child's injury and its cause.
Significantly, even if your
child's claim for his own personal injuries is time-barred, you
and your husband may have viable claims for the medical,
rehabilitative, nursing, and related expenses you incur as a
result of your child's injuries. In cases involving brain-damaged
children, those expenses are often substantial. Your active-duty
status may operate to extend the time within which you have to
file a claim.
- What if I was injured by a federal employee acting abroad? I
heard that the Federal Tort Claims Act does not apply to claims
arising in foreign countries.
Answer: That is true. However, you have
a right to file a claim for compensation under a companion
statute, the Military Claims Act. It is similar to a Federal Tort
Claims Act case. If a Military Claims Act claim is denied,
however, there is no right to sue the United States. However, the
United States must exercise good faith in resolving Military
Claims Act claims. We have had good success in settling these
claims.
- Will filing a federal tort claim or a military claim harm my
military career?
Answer: Our experience is that the
government does not retaliate against service members or their
families who have filed such claims. It would be a violation of
the law for the government to do so. We have settled hundreds of
federal tort and military claims for soldiers from E-1 to O-7 and
know of no client whose military career was adversely affected by
the filing of such a claim.
- What is the difference between obtaining federal tort
compensation and obtaining the disability or death benefits that may
accrue to me or my family as a result of my injuries?
Answer: The right to receive federal
tort compensation is entirely different from the right to receive
administrative benefits under the Veterans' Benefits Act or
similar federal disability and death benefit statutes. Your
entitlement (if any) to administrative disability and/or death
benefits does not depend on whether the injury was
negligently-inflicted. Where available, these benefits are usually
far less than a federal tort settlement or award would be.
- I know an active-duty service member who was seriously injured
in a motor vehicle accident with a negligent government driver. His
claim for his own personal injuries was barred while his claim for
the medical expenses his child incurred in the same accident was
not. This treatment seems unfair. Can something be done to abolish
the Feres doctrine?
Answer: Yes. We encourage you to
organize and lobby for the passage of federal legislation that
would change the law. The media may be able to assist you in this
regard. For several years, television news-magazine shows such as
20/20 have aired programs concerning active-duty service members
who were seriously injured by negligent federal employees but left
massively under-compensated and essentially destitute because of
the law.
- How can I obtain further information about my potential federal
tort claim?
Answer: You should contact us if you
would like more general information on this subject, or if you
have a specific question about a potential claim.
- How much will it cost to pursue a claim with your Firm?
Answer: Your confidential telephone consultation
is free, and there is no cost associated with our investigation
into whether your claim has merit. If your claim is successful,
the attorneys' fee is limited by federal law to 20% of any amount
recovered at the administrative claims stage, and to 25% of any
amount recovered if suit is filed. You will also be responsible
for out-of-pocket expenses paid to prosecute your
claim.
- I am stationed in California. Would I be better served by a
local attorney?
Answer: Not necessarily. As a potential claimant,
your first requirement is a thorough investigation into the merits
of your potential claim. We can perform that service more
expeditiously than the majority of attorneys nationwide because we
have a physician-attorney on our staff, and attorneys who have
previously worked in claims offices within the government. We know
the system, understand the medium, and will help resolve your
claim or answer any questions you may have.
The military claims services that decide the vast majority of
substantial claims against military health care providers are
located within twenty miles of our office. Consequently, we are
able to promote the successful resolution of your claim by meeting
face-to-face with the responsible military claims officers, a
service that a California attorney probably would not provide. We
are also within three miles of the world's most prestigious Naval
hospital (Bethesda Naval Medical Center) and within ten miles of
the world's most prestigious Army hospital (Walter Reed Army
Medical Center), some of the very facilities that service members
and their families are likely to utilize in cases involving
serious injury.
In short, although you may live in California or elsewhere, our
location makes us uniquely well-suited to investigate and resolve
your claim.
- If an injury occurred in the United States, but I am stationed
overseas, can I file a claim?
Answer: Yes, where you are stationed will not
prevent you from filing a claim or impair our ability to represent
you. |
