Injuries at Indian Health Services on Montana’s Indian Reservations

The McGrady Law Firm handles medical malpractice cases across the state. If your personal injury occurred due to the negligence of a medical professional at an Indian Health Services facility on one of Montana’s Indian Reservations, your claim may fall under the Federal Tort Claims Act. The same is true for injuries at Veterans Affairs facilities. It is important to get legal assistance as soon as possible if you have been the victim of the medical negligence by a federally operated facility as the Federal Tort Claims Act has different requirements of other laws.

Time Limitations for Montana Federal Tort Claims Cases

The Federal Tort Claims Act (“FTCA”) bars a tort claim against the United States unless first presented to the appropriate federal agency “within two years after such claim accrues.” The federal statute, 28 U.S.C. § 2401(b) provides as follows:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C.A. § 2401(b).

Timely compliance with § 2401(b) is a jurisdictional prerequisite. Federal rather than state law controls when the statute of limitations accrues for a personal injury action brought under the Federal Tort Claims Act. See, e.g., Poindexter v. United States, 647 F.2d 34, 36 (9th Cir. 1981). A plaintiff has a cause of action against the government under the FTCA if he also would have a cause of action under state law against a private person under like circumstances. 28 U.S.C. § 1346(b).

Although the FTCA does not define when a claim “accrues,” the Supreme Court has held that a plaintiff’s medical-malpractice claim accrues when he “knows both the existence and the cause of his injury.” Kubrick, 444 U.S. at 113.

The Ninth Circuit considered this issue in a wrongful death and survival action in a medical malpractice case arising under the FTCA, determining whether the claim “accrued” 1) at the time of his wife’s death, or 2) at the time when he discovered, or in the exercise of reasonable diligence should have discovered, both the injury and the cause of his wife’s death. In re Swine Flu Products Liab. Litig., 764 F.2d 637, 639 (9th Cir. 1985). The Ninth Circuit concluded the rule stated in Kubrick should be extended to wrongful death claims under the FTCA. Id. at 640. Thus, a medical malpractice claim does not accrue under the FTCA until the plaintiff discovers, or reasonably should have discovered, his injury and its causes. Id.

Procedural Requirements of Federal Tort Claims in Montana

The claim must first be presented to the appropriate federal agency within two years of the claim’s accrual. 28 U.S.C. § 2401(b). A claim is deemed “presented” to a federal agency when the proper claim form (Standard Form 95) or other written notification is received by the agency:

For purposes of the provisions of 28 U.S.C. § 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

28 C.F.R. § 14.2(a).

The FTCA’s jurisdictional statute, 28 U.S.C. § 2675(a), requires that claims for damages against the government contain a sum certain damages claim. Flud v. United States, 10-CV-725-GKF-TLW, 2014 WL 2439980 (N.D. Okla. May 30, 2014).

Once SF-95 is presented to the appropriate department, the department has six months to consider the claim, and if the agency has not acted within six months then the claimant has the option of deeming it a final denial and proceeding in court:

(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.

(b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.

(c) Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of liability or amount of damages.

28 U.S.C.A. § 2675.

If you have been the victim of negligence at the hands of a federal employee or agency, you should contact an attorney like Philip McGrady who has experience handling federal tort claims cases. Philip McGrady is based in Whitefish, but handles cases all across the state and has appeared in Tribal courts across the state.