Frequently Asked Questions
What kind of cases do you
handle?
Our attorneys have handled cases in virtually every area of medicine
including birth trauma, surgical errors, and “failure to diagnose”
(e.g., cancer, meningitis, stroke, heart disease, epidural abscess,
abdominal aortic aneurism, etc). We pride ourselves on accepting challenging
cases that other firms have turned away because of their complexity.
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What will it cost me to file
a claim?
Our firm operates on a contingency fee basis. That means we get paid
only if you recover. Should you obtain a recovery as a result of the
claim, the law specifically designates how much the attorney can receive.
That amount is 20% of the total recovery if a settlement is reached
prior to filing a suit in federal court. If a recovery is obtained after
suit is filed, attorney fees cannot exceed 25%. The costs incurred in
prosecuting the claim will also be deducted from the final recovery.
Our firm never requires payment of a “retainer fee”.
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Shouldn’t I hire a
local attorney to handle my case?
The best way to insure a successful outcome is to hire an attorney
experienced in handling FTCA cases. The FTCA has very specific requirements
that must be met and you want to insure that your attorney has experience
in dealing with this statute. In addition, knowing how the system
works and who the players are can greatly enhance your receiving a
recovery short of having to go to trial. If your case must go to trial,
it will be tried in a federal district court. Your attorney therefore
must have experience with federal procedure – something that
is not common with all local lawyers. Finally, you pay no more for
an experienced FTCA attorney since attorney fees are set by statue.
Our attorneys have filed suit on behalf of FTCA clients in federal
courts located in the following states: Alabama, Alaska, Arizona,
Arkansas, California, Colorado, District of Columbia, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Minnesota,
Nebraska, Nevada, New York, North Carolina, Ohio, Oklahoma, Tennessee,
Texas, Virginia, West Virginia, Wisconsin, and Washington.
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Should I hire a lawyer who
is also a doctor?
In order to successfully prove negligence in a medical malpractice suit,
the law requires that the claimant present testimony from an expert
in the same medical field as the offending doctor, i.e., surgery, OB/GYN,
orthopedics, internal medicine, etc. As such, it is critical to retain
experts of impeccable character and with the highest professional credentials.
Our firm does exactly that and over the years has developed relationships
with nationally recognized medical practitioners with whom we consult.
We believe it is absolutely essential to have experienced lawyers and
outstanding experts in order to achieve success. We believe our record
in this regard speaks for itself.
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Will filing a claim affect
my military career or my family’s access to government health
care?
Having handled FTCA claims for over twenty years on both the side of
the government and the side of the patient, we have never seen a situation
where filing a claim has negatively affected a service member’s
career. In the unlikely event that were to occur, the aggrieved soldier
would have recourse under both military regulations and federal law
and our firm would aggressively pursue such recourse on behalf of the
client. Finally, the right to government health care for military dependents
is provided by law and cannot be denied because a claim is filed.
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If I am a veteran receiving
VA disability, will filing a claim affect my VA benefits?
This is a very technical area of the law and the answer will depend
on each veteran’s individual circumstances. Usually there will
be no loss of benefits if they are received because of service-connected
disabilities. However, this is not always the case – especially
when a veteran is awarded compensation under 38 U.S.C. 1151 or a spouse
received DIC payments upon the death of a veteran. Our attorneys are
experienced in these matters and will be happy to discuss your individual
situation.
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Will I personally meet my
lawyer?
Prior to accepting your case, an attorney will personally discuss at
length the facts surrounding your claim. Only by doing so can we adequately
evaluate the merits of your claim. Once your case has been accepted
and a law suit filed, your attorney will meet with you face to face
because we believe a personal relationship is necessary to insure success.
Of course, you are always welcome to call any of our lawyers to discuss
your case since we are all part of the team working for you.
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Who can sue the government
for medical malpractice?
Generally any person who has been injured as a result of medical negligence
occurring in a United States government health care facility with the
exception of active duty personnel. This includes military dependents,
military retirees, and veterans.
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Why can’t active
duty personnel sue for medical malpractice?
In 1950 the Supreme Court decided a case called Feres v. United States
in which it ruled that active duty personnel injured “incident
to service” cannot file claims against the United States under
the Federal Tort Claims Act. Receiving treatment at government facilities
has been deemed an activity “incident to service”.
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Isn’t this
unfair and discriminatory that active duty personnel can’t sue
for medical malpractice?
We believe it is, but the Supreme Court does not. In its original Feres
opinion, the Court stated that Congress did not intend to cover active
duty personnel under the FTCA because it had already created a generous
compensation system to care for injured soldiers under other existing
statutes.
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Has there been an
attempt to change the Feres Doctrine which prevents soldiers from suing
the government?
For over 50 years the Supreme Court has refused to change its position.
Instead, it has pointed out that Congress can always change the law
to specifically include active duty personnel. Despite several attempts
by people like Congressman Barney Frank of Massachusetts, Congress has
refused to change the law.
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I know of active
duty soldiers who have obtained FTCA recoveries from the government
in medical malpractice actions. How can this be?
The federal courts do allow active duty personnel to recover “derivative
damages” in some cases. If allowed by the state where the negligence
occurred, a soldier can sometimes recover for lost society and services
derived from an injury to a spouse or child who has filed an FTCA claim.
This is a complicated legal issue which must be handled by an attorney
experienced with such cases.
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When must I file my suit?
An FTCA claim in a medical malpractice action must be filed within two
years of “accrual” of the claim. Accrual is defined to occur
when a claimant knows he has been injured and is aware, or in the exercise
of reasonable diligence should be aware, of the cause of that injury.
This is an extremely complicated legal analysis that must be made by
an attorney experienced with the FTCA. It is also a critical analysis
because failure to file within the two year period will forever bar
the injured person from filing a claim.
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Does the two year statute
of limitations even apply to children?
Yes, unlike many states, the FTCA makes no exceptions for infants, children,
or incompetents. If your infant suffers injury during childbirth, you
must consult an attorney to insure that the two year rule is met.
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How do I file an
administrative claim?
The FTCA requires that the injured person file a claim with the offending
agency prior to filing suit in federal court. There are very specific
pieces of information that must be included in a claim and an experienced
attorney should be consulted. At the very least, the claim must contain
the facts which support an allegation of medical negligence and the
injuries sustained. It must also demand a specific amount of money in
compensation.
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How long will it
take for my claim to be paid?
The FTCA requires that you allow the offending agency (Army, Navy, Air
Force, VA) at least six months to investigate the claim. If the claim
has not been resolved at the end of six months, the claimant can then
file suit in federal court. Once the case is in federal court, it can
take up to 18 months (sometimes longer) to arrive at a final decision.
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Where will the trial
of my case take place?
If there is a trial, it will take place either where the negligence
occurred or where the injured party currently resides.
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What law will be
applied to my claim?
This is a complicated legal question. However, the law of the place
where the negligence occurred will usually be applied no matter where
the suit is filed. For example, if the negligence occurred at Fort Hood,
Texas but the lawsuit is filed in federal court in Fayetteville, North
Carolina, then the law of Texas will be applied even if it is different
from that of North Carolina.
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Why is the applicable
law important?
This is particularly important in cases where death has occurred
because each state has its own rules regarding who can file suit in
such cases. It is also important in cancer cases where states have different
laws for this special injury. Again, it is absolutely crucial that you
consult an experienced FTCA attorney to avoid compromising your claim.
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How do I file a
claim for injuries occurring overseas?
In creating the FTCA, Congress specifically limited its coverage to
the United States and its territories. Therefore, claims which arise
out of injuries occurring overseas, i.e., Germany, England, Korea, etc.,
are not covered by the FTCA. However, they are covered by a statute
called the Military Claims Act.
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How does the Military
Claims Act differ from the Federal Tort Claims Act?
The major difference between these statutes is that under the MCA the
claimant has no right to sue the United States in court.
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Isn’t it unfair
that person injured overseas can’t sue the United States?
We think it is, but that is the law.
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Why does such a
prohibition exist?
The Doctrine of Sovereign Immunity is a vestige of the common law which
the United States adopted when it was created. That doctrine states
that a citizen cannot sue the government without the government’s
permission. Prior to 1946, no citizen could sue the United States government
for any injury caused by a government employee. In that year, however,
Congress passed the FTCA which provided for the partial waiver of its
sovereign immunity. It did not include claims arising overseas. To fill
in this gap, Congress passed the Military Claims Act which has its own
special rules – one of which is that no claim can be filed in
a federal district court.
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How does the MCA
work?
Virtually everything about the MCA is identical to the FTCA except that
claimants cannot file suit against the government. Instead, the offending
agency (Army, Navy or Air Force) adjudicates the claim administratively.
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What does it mean that the
offending agency will adjudicate the claim?
The agency will investigate the claim, consider any evidence offered
by the claimant, and make a decision on whether to award money damages
and, if so, how much.
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Am I stuck with the agency’s decision?
Yes and no. The law allows dissatisfied claimants to appeal an agency
decision to a senior official within that agency. It has been our experience,
however, that the senior official rarely changes the agency’s
final decision.
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Can I get fairly compensated under the Military
Claims Act?
In cases of clear negligence and obvious injury the recoveries are generally
comparable to those received under the FTCA. In close cases, however,
claimants have not faired as well. It is critical therefore to retain
a law firm which has the experience and resources to present a compelling
case in support of your claim. We have been successful in past cases
in getting the government to reverse a denial and award damages to our
clients in difficult MCA claims.
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