SECTION VIII GOVERNMENT LIABILITYBeginning point Sovereig.docx

SECTION VIII: GOVERNMENT LIABILITY
Beginning point: Sovereign immunity
- based on historical notion that “the king can do no
wrong”
- in practice: you cannot sue the government without its
permission
PS 480, Liability, Sec VIII
1
Key liability issues in administrative law:
1) exceptions to sovereign immunity, usually created by statute
2) whether and how immunity applies to individuals
2
Most cases are “torts”
Tort: “legal wrong done to another person”
Typically people seek correction of, and compensation for, the
injury

Liability in these cases is typically a matter of common law,
state by state, until preempted by statutes
3
GOVERNMENT LIABILITY
Intentional tort: on purpose: defamation, destruction incidental
to legal searches, loss of business due to rules enforcement
- Generally government has immunity against such suits but not
when they involve a battery or false imprisonment
Unintentional tort: injury incidental to other activities or
decisions
- Generally negligence of some sort
4
Negligence: injury which could have been avoided with
reasonable care
- most common unintentional tort
- often centers on notion of unfulfilled duty
5

Successful negligence suit requires proof of:
- failure to exercise reasonable care
- failure was proximate cause of injury
failure resulted in specific amount of injury
BUT NOTHING HAPPENS UNLESS SOVEREIGN IMMUNITY
IS WAIVED ….
6
Federal Torts Claims Act (1946):
Allows suits against federal government under some conditions
- Some elements are determined by state torts claims acts:
extent or limits of liability (ex $200,000 in Florida)
7
Exceptions to FTCA:
Executive Functions: specific executive functions and claims in
foreign states are excepted
Intentional Torts
Discretionary Functions: When government actor makes a
policy choice

Scope of Employment: state by state, basically liability occurs
only when government official is acting outside of proper job
requirements
Public Duty: liability only occurs where government action or
inaction is not owed to specific individual. Harm to private
parties that is not targeted is not liable, and failure to act
responsibly only liable when specific obligation has been
created for particular party
- general public cannot sue
8
FTCA: Exemptions – areas where government is still immune
Intentional torts: harms that arise because of deliberate actions
(as opposed to accidents)
Harms to property incident to serving warrant
Harms to reputation due to publication of arrest
Generally remain immune, but exceptions in cases of assault,
battery, false imprisonment, false arrest, abuse of process,
malicious prosecution
Basically there is a list of exceptions for which the government
can be sued.
9
GOVERNMENT LIABILITY: Discretionary Functions Immune

Dahlehite (1953): Texas City explosion
10
GOVERNMENT LIABILITY: Discretionary Functions Immune
Berkovitz v. U.S. (1988): random inspections of polio vaccines
not discretionary
United States v. Varig Airlines (1984): random safety
inspections on planes okay - discretionary
U.S. v. Gaubert (1991): federal Home Bank Loan
Board(FHLBB) took over Independent American Savings
Association, a Texas Savings and Loan,
- FHLBB forced management change and following
mismanagement cost Gaubert much money
Discretionary action not liable
11
FTCA and Medical Malpractice
FTCA can be amended.
Initially government maintained its immunity in medical care,
but individual practitioners were liable
Medical Malpractice Immunity Act allows suits against the
federal government but not individual government practitioners
State torts claims acts vary, but generally parallel federal
guidelines.

12
Feres doctrine: military people may not sue for injuries
suffered in active duty
13
Clarke v. OHSU (2007) : Oregon Health Sciences case
Oregon Supreme Court declared in 2007 the existing $200,000
limit invalid since the state constitution states ". . . every man
shall have remedy by due course of law for injury done him in
his person, property, or reputation."
Oregon legislature raised the limits to an indexed $2-4 million,
and $500,000 – $1 million for local governments
14
Individual Immunity
Official immunity
- absolute verse qualified immunity: only a few have absolute
immunity
- ministerial v. discretionary duties – if doing something is
required, you may be liable for not doing it; if you must make

decisions, less liability
good faith immunity
- Knowingly violating constitutional rights creates liability:
Section 1983
- special immunity based on job: judges
15
Federal Employee liability: Bivens
Bivens(1971) case involved agents for the old Federal Bureau
of Narcotics invading houses and holding the wrong people
under armed guard while doing destructive searches
- Court said that actions that directly violate constitutional
rights may be subject to liability
16
Local Government Liability under Section 1983
Owen v. City of Independence (1980):
- Firing without due process of chief for issues on evidence
room
- SCOTUS: violations of constitutional rights by municipalities
doe not receive sovereign immunity protection
17
The Eleventh Amendment: State immunity from federal court

lawsuits
Basically protects states from most lawsuits filed in federal
courts, unless there is constitutional connection, such as
fundamental due process
- States can use same immunity in their own courts
Does not apply to local governments
18
Last details …
Before you can turn to the courts, you must first go through
whatever the administrative process is for the agency or
government to make a claim. “Exhaustion”
Claims about religious freedom and COVID shutdown:
in state court: asserts governor has overreached on statute
giving her power for health shutdown)
federal court claim that the freedom of religion is violated
absolutely.
Josephine County has no active cases of COVID and one church
would normally have 900 attendees.
19
S Y M P O S I U M : E V O L V I N G M E D I C O L E G A L
C O N C E P T S

Sovereign Immunity: Principles and Application in Medical
Malpractice
Michael Suk MD, JD, MPH, FACS
Published online: 14 March 2012
� The Association of Bone and Joint Surgeons1 2012
Abstract
Background Tort law seeks accountability when parties
engage in negligent conduct, and aims to compensate the
victims of such conduct. An exception to this general rule
governing medical negligence is the doctrine of sovereign
immunity. Historically, individuals acting under the
authority of the government or other sovereign entity had
almost complete protection against tort liability.
Questions/purposes This article addressed the following:
(1) the development of sovereign immunity in law, (2) the
lasting impact of the Federal Tort Claims Act on sovereign
immunity, and (3) the contemporary application of sover-
eign immunity to medical malpractice, using case

examples from Virginia and Florida.
Methods I performed an Internet search to identify
sources that addressed the concept of sovereign immunity,
followed by a focused search for relevant articles in Pub-
Med and LexisNexis, literature databases for medical and
legal professionals, respectively.
Results Historically, sovereign liability conferred abso-
lute immunity from lawsuits in favor of the sovereign (ie,
the government). Practical considerations in our democratic
system have contributed to an evolution of this doctrine.
Conclusions Understanding sovereign immunity and its
contemporary application are of value for any physician
interested in the debate concerning medical malpractice in
the United States. Under certain circumstances, physicians
working as employees of the federal or state government
may be protected against individual liability if the gov-
ernment is substituted as the defendant.
Introduction

The legal basis for accountability in medical practice is
rooted in negligence law. Negligence law is comprised of
four elements: duty, breach, causation, and harm. In other
words, it imposes a duty on individuals and organizations
to meet standards of due care as established by peer
practice. If a failure to meet such standards results in harm
to another party, those individuals or organizations
responsible can be sued and may be found liable for
damages in a court of law. Medical malpractice is a unique
subset of negligence or tort law whose regulation is both a
fertile and active battleground between physicians, attor-
neys, and lawmakers. Traditionally, in medical malpractice
cases involving negligent acts or omissions, the physician
is individually liable for damages. However, a powerful
shield to physician liability can manifest if the government
is substituted as defendant when a physician is acting
within the scope of federal or state employment.
Sovereign immunity is a legal doctrine that protects a

sovereign body (ie, the federal or state government and
their respective agencies) from being held liable for civil
wrongs (torts) committed by its departments, agencies, or
employees, unless consent to be sued is expressly granted
by the sovereign body itself. This blanket protection from
liability is clearly advantageous for the sovereign, but
The author certifies that he or a member of his immediate
family, has
no commercial associations (eg, consultancies, stock ownership,
equity interest, patent/licensing arrangements, etc) that might
pose a
conflict of interest in connection with the submitted article.
All ICMJE Conflict of Interest Forms for authors and Clinical
Orthopaedics and Related Research editors and board members
are
on file with the publication and can be viewed on request.
M. Suk (&)
Department of Orthopaedic Surgery, Geisinger Health System,
MC 21-30, 100 N Academy Ave, Danville, PA 17822, USA
e-mail: [email protected]
123
Clin Orthop Relat Res (2012) 470:1365–1369

DOI 10.1007/s11999-012-2311-x
Clinical Orthopaedics
and Related Research®
A Publication of The Association of Bone and Joint Surgeons®
leaves the injured party with little or no remedy for the
harm suffered. The concept of sovereign immunity creates
certain exceptions to medical malpractice liabilities that are
important for clinicians to understand. Accordingly, this
review had the following purposes: (1) discuss the devel-
opment of the sovereign immunity doctrine in law
(2) examine the lasting impact of the Federal Tort Claims
Act on sovereign immunity, and (3) examine the contem-
porary application of sovereign immunity to medical
malpractice. Specific examples examined include the
unique circumstances applied to military personnel on
foreign soil covered under the Medical Malpractice
Immunity Act, the legal interpretive test established by the
state of Virginia, and finally the policy-based approach in

the state of Florida that applies to physicians working in
teaching hospitals and medical schools.
Search Strategy and Criteria
I searched the topic of ‘‘sovereign immunity’’ in a general
Internet query, using the Google search engine. Legislative
acts and legal cases thus identified were further investi-
gated using the PubMed and LexisNexis databases used by
medical and legal professionals, respectively, to learn
about the selected examples cited in this article. Inclusion
criteria for such relied principally upon relevance to the
topic of how sovereign immunity modulates medical mal-
practice law, and the lessons that may be of interest and
value to practicing clinicians.
The Doctrine of Sovereign Immunity
In the context of this legal framework, broad bars to legal
liability for negligent acts are often called immunities. At
the level of the state and federal governments, this
immunity is usually referred to as sovereign immunity and

is associated with the idea that the ‘‘King can do no wrong’’
[10]. The doctrine of sovereign immunity holds that the
government cannot be sued or held legally responsible for
its actions or the actions of its branches, departments,
agencies, and employees [4]. Today, cases of negligent acts
by physicians employed by the federal or state govern-
ments are sometimes covered under this doctrine and
provide broad protections against individual liability;
however, its application is both complex and often
misunderstood.
The general principle of sovereign immunity was carried
over to the United States, even without a ‘‘sovereign.’’ The
reason for this was partly the belief that actions of the
executive branch should not be subject to regular judicial
review as a result of individual tort litigation [12]. The
modern rationale focuses on the inappropriateness of
holding government to the same standards of due care
applicable to private parties. As a general rule, actions

taken by the government are immune from suit, except if
the government consents to litigation.
Physicians working as an employee of the federal or
state government often cite sovereign immunity as the
basis for the claim that they cannot be sued. As a general
rule, this is an inaccurate assertion. In fact, government
employment status and its attendant liability protection is
more appropriately defined as ‘‘defendant substitution,’’
whereby the government waives sovereign immunity and
consents to be sued in lieu of the individual physician. The
genesis of this legal rubric lies in the Federal Tort Claims
Act [18].
The Federal Tort Claims Act
The broad application of sovereign immunity did not his-
torically preclude individuals from suing the government
for acts resulting in harm. Early cases of tort litigation
against the United States show that success in obtaining
damage awards was both extremely challenging and

granted only under very limited circumstances: (1) if the
individual could demonstrate that the government com-
mitted a taking of property compensable under the
Constitution, or (2) if the individual had the political
connections and wherewithal to maneuver a private bill
through Congress [10]. Owing to the burdensome nature of
this process, Congress enacted the Federal Tort Claims Act
in 1946. Under the Federal Tort Claims Act, the govern-
ment allows itself to be sued for the acts of its departments,
agencies, and employees to the same extent as a private
individual for inappropriate acts under negligence law [3].
In the broad view, when the government’s conduct is at
the planning level, it is protected by the immunity. How-
ever, during its execution (ie, the operational level) the
government is not immune and its actions must be carried
out with ‘‘reasonable care.’’ Reasonable care is a concept
of tort law and refers to conduct that a reasonable person in
the defendant’s shoes would have engaged in under similar

circumstances. Affirmative, specific acts of negligence are
often clearly operational, so that the government can be
held liable for the negligent operation of automobiles [15],
airport control towers [13], lighthouses [7], and the negli-
gent performance of medical care [16].
For example, if the government makes an administrative
decision that wrongly denies a patient admission to a
hospital (planning level), and the patient is harmed because
of a failure to provide the standard of care once he is
admitted (operational level), immunity is applied for the
1366 Suk Clinical Orthopaedics and Related Research
1
123
first act [11], but not the second [16], under the modern
interpretation of sovereign immunity.
The Federal Tort Claims Act specifically gives plaintiffs
the option of suing the government in addition to, or in lieu

of, the federal employee under the laws of the state in
which the negligent act occurred [18]. However, while the
plaintiff has the option of suing the United States in
addition to the employee, he may only recover damages
from one defendant [6]. For practical reasons, many
plaintiffs elect to sue only the government over the
employee because recovery of monetary damages is far
more certain. However, with that decision, plaintiffs give
up certain remedies. For example, under the Federal Tort
Claims Act, punitive damage awards against the govern-
ment are expressly disallowed [15]. Moreover, the Federal
Tort Claims Act imposes a 2 year statute of limitations,
which, in some instances, may be shorter than under many
state laws [17]. Finally, in medical malpractice cases, a
jury trial is often preferred, particularly if the injury has the
potential to elicit sympathy. Under the Federal Tort Claims
Act, jury trials are not allowed [9].
Medical Malpractice Immunity Act

As originally enacted, the Federal Tort Claims Act gave a
general consent for defendant substitution with specific
exceptions. Particular to medical malpractice, one of the
exclusions under the Act applied to the ability to sue the
federal government for negligent acts by US medical per-
sonnel serving on a military base on foreign soil [2]. Under
this exclusion, the federal government maintained its
complete sovereign immunity, leaving only the individual
practitioner to act as a defendant. Military physicians
serving overseas found themselves individually liable for
the consequence of medical malpractice. Owing to the
phenomenon of a dramatic increase in malpractice suits
during the early 1970s, Congress sought to remedy the
situation with the enactment of the Medical Malpractice
Immunity Act [1].
The purpose of the Medical Malpractice Immunity Act
is to protect federal medical personnel ‘‘from any personal
liability arising out of the performance of their official

medical duties’’ [14] by substituting the federal govern-
ment as defendant. The Medical Malpractice Immunity Act
protects medical personnel in most instances by removing
the claimant’s option to sue the physician individually.
From a public policy standpoint, such protections provide a
substantial incentive for physicians to serve overseas in
areas of the greatest military need, providing care with the
understanding that, in the case of medical negligence, the
federal government would allow itself to be sued in lieu of
the individual.
US State Sovereign Immunity
Based on the idea that the king could do no wrong, the
sovereign immunity doctrine of the modern state is much
like that of the federal government (ie, the state and its
agencies must consent to be sued). In doing so, the gov-
ernment offers itself as a substitute for the individual
defendant. With rare exception, the great majority of states
in the United States have now consented to at least some

liability for torts committed by government employees.
The method by which states expose themselves to lia-
bility varies. Several states have established administrative
agencies to hear and determine claims against the state. In
most instances, nearly complete relief seems possible,
subject only to the dollar limit that may be imposed on the
state’s liability. Other states have agreed to be sued in
limited cases, typically where the state or its agency has
procured liability insurance that will pay any judgment.
The majority of states, however, have abrogated sover-
eign immunity in a substantial or general way [15].
Overall, the liability of these states is as broad as, or
broader than, the liability of the federal government under
the Federal Tort Claims Act. Physician liability exposure in
these states is limited as a result. And while the specter of
individual lawsuit exists, physician fears are often assuaged
in the knowledge that plaintiffs are compelled to choose
one defendant over the other, and often choose govern-

ments over individuals. Specific examples of state
legislative efforts in this area of law follow.
The Virginia Test
To examine the application of the sovereign immunity doc-
trine to medical malpractice, the case of James v Jane is
instructive [8]. At issue was whether or not a full-time
employed physician employed by the Commonwealth of
Virginia was entitled to a sovereign immunity defense when
sued for medical malpractice (ie, the physician as direct agent
of the commonwealth could do no wrong and, therefore, could
not be sued). In this case, the commonwealth did not consent
to be substituted as the defendant, thereby exposing the
individual physicians to major liability concerns. The defen-
dants argued that as full time employees of the
commonwealth, their actions were in the interests of public
policy and, therefore, they should be immune from lawsuit.
In adjudicating this case, the Supreme Court of Virginia
examined four factors: (1) the relationship between the

doctor’s functions and the state’s important governmental
objectives, (2) the extent of the state’s interest and
involvement in the doctor’s function, (3) the degree of
control and direction exercised by the state over the doctor,
and (4) the doctor’s use of judgment and discretion [8].
Volume 470, Number 5, May 2012 Sovereign Immunity and
Medical Malpractice Law 1367
123
In this landmark ruling, the Commonwealth of Virginia
said that the physician’s primary function was to provide
good medical care, which was distinct from the state’s
objective of providing a good medical school institution,
thereby weakening the sovereign immunity defense. Fur-
thermore, the nexus between the state’s general interest in
good quality care and involvement in the specific physi-
cian’s delivery of that care through control and direction
did not coincide sufficiently to warrant an immunity
defense. Finally, the court noted that physicians had sub-

stantial discretion and the ability to use their own judgment
in their delivery of medical care, making them individually
liable for their negligent actions.
The James v James ruling set forth certain legal prin-
ciples that have served as a precedent in later cases dealing
with similar issues. The lesson here is that the legal
application of immunity is driven by the proximity to
which the government employee has to the overall objec-
tives of the state and the degree to which the government
has control over an employee’s actions. Other than an
agreement for defendant substitution as provided for in
statutes similar to the Federal Tort Claims Act, where a
sovereign immunity defense fails, the individual is
responsible for attendant damages.
The Florida Approach
An examination of the Florida approach further illustrates
these principles. The State of Florida and its counties,
municipalities, and other political subdivisions have

waived sovereign immunity in favor of defendant substi-
tution [5]. In cases of torts committed by physicians
employed by the government, Florida’s waiver of sover-
eign immunity allows plaintiffs to recover damages from
the state government. However, the state places caps on
payment of a judgment or claim up to a maximum of
$200,000 per person, or $300,000 per incident [5].
Similarly, Florida law further allows independent con-
tractors to enjoy the benefits of the low limits on damages
and it is specifically designed to allow those providing
medical services to the indigent at county hospitals to be
considered agents of the immune entity [5]. Specifically,
Florida statute § 768.28(10)(f) provides that health care
practitioners who are affiliated with a Florida not-for-profit
college or university that owns or operates an accredited
medical school and have contractually agreed to act as
agents at a teaching hospital to provide health care services
are considered agents of the teaching hospital for purposes

of the statute. The teaching hospital must be owned or
operated by the state, a county, a municipality, a public
health trust, a special taxing district, or any other govern-
mental entity with health care responsibilities. The health
care providers must act within the scope of, and pursuant
to, the contract in order to be considered agents of the
teaching hospital. Conceptually, the Florida approach to
modernizing sovereign immunity mirrors that of Virginia
in the James v Jane ruling.
Discussion
Tort law seeks accountability from parties engaged in
negligent conduct and is intended to provide compensation
to victims of such conduct. Historically, however, indi-
viduals acting under the authority of the government or
other sovereign entity have had almost complete protection
against tort liability claims. This exception has been known
as the doctrine of sovereign immunity. The goal of this
article was to identify (1) the history and development of

sovereign immunity, (2) the lasting impact of the Federal
Tort Claims Act, and (3) its contemporary application to
medical malpractice in the United States. I identified and
examined specific state legal cases and legislative acts.
This review was limited in that it was not a compre-
hensive examination of the doctrine of sovereign immunity
outside of its specific application to medical malpractice
jurisprudence. Also, I selected the judicial cases cited here
in light of their direct contribution to our understanding of
sovereign immunity. Third, many states other than Florida
and Virginia have enacted specific statutes relevant to the
concept of sovereign immunity, and these statutes have
been the subject of litigation at the state level. Rather than
provide a comprehensive legal review, my goal was to
select the best examples that could illustrate the sovereign
immunity doctrine and its effects on practicing clinicians.
Sovereign immunity is a practical, historical doctrine
designed to enable the sovereign (ie, the king or govern-

ment) to do its work without the fear of limitless litigation
related to disputes arising from acts of governance. Applied
in its pure form, it confers absolute immunity from legal
liability upon the sovereign, leaving injured parties without
any recourse or compensation. The modern application of
sovereign immunity reflects an attenuation of the rigid
historical concept. Today, as a broad bar to legal liability
for negligent acts, sovereign immunity most commonly
protects governmental planning actions or policy-making
actions to avoid endless judicial speculation and second-
guessing of the actions of the executive or legislative
branches of government. However, when the government
carries out its policies on an operational level using indi-
viduals acting on behalf of the government, then sovereign
immunity can operate undesirably by subjecting the indi-
vidual employee acting on behalf of the government to
legal liability, and leaving the individual as the only source
from whom damages may be collected.

1368 Suk Clinical Orthopaedics and Related Research
1
123
Recognizing these considerations, the Federal Tort
Claims Act was enacted in part to provide protection for
individuals acting on behalf of the government in lawsuits
involving negligent acts. The Federal Tort Claims Act
provides a general consent by the government to be named
in a lawsuit and provides a mechanism by which the
government may be substituted for the individual defen-
dant. This defendant substitution allows an individual
defendant relief from becoming the sole source for dam-
ages arising out of lawsuits directed at the government. The
majority of states in the United States have enacted similar
statues that provide a general consent to be sued as a
sovereign entity and follow procedural mechanisms that
are modeled after he Federal Tort Claims Act.

In the context of medical malpractice under negligence
law, sovereign immunity and the related concept of
defendant substitution can provide important protections
against individual liability for physicians working on
behalf of a state or federal government. Specifically,
medical personnel working overseas on behalf of the
government, those working in teaching hospitals, or insti-
tutions affiliated with, or owned by, the government may
have relatively more protections against medical negli-
gence lawsuits than private clinicians. However, such
immunity is not impregnable, as the case law from Virginia
illustrates. Rather than conferring blanket immunity upon
employee physicians and always permitting substitution of
the state as the defendant, Virginia law requires an exam-
ination of the relationship between the physician and the
state by considering several factors, including the doctor’s
functions versus governmental objectives, the extent of
state involvement in the doctor’s function and the amount

of control exercised by the state over the doctor, and the
doctor’s use of judgment and discretion. Rather than
assume that government-related employment may mitigate
legal liability in a medical negligence action, physicians
should be aware that liability in such cases turns on a
factual inquiry, as illustrated by the landmark James v Jane
case in Virginia.
The practice of medicine is a complex endeavor, and the
Florida approach is another instructive example in under-
standing how modern sovereign immunity affects medical
malpractice negligence law. While Florida has chosen, for
policy reasons, to allow its local governments to be
substituted as defendants in medical negligence lawsuits,
thereby allowing plaintiffs to recover damages from the
state government, the state has also imposed monetary caps
on such damages. Florida law protects physicians who
contract to provide services at indigent hospitals, medical
schools, colleges and universities, and teaching hospitals.

If Florida physicians are acting in the scope of their con-
tractual duties at a facility owned or operated by the
government, then sovereign immunity can shield them
against medical negligence lawsuits.
In summary, a historical legal doctrine designed to
protect the sovereign and allow effective governance has
undergone considerable evolution in our democratic soci-
ety. In the medical negligence setting, sovereign immunity
can operate to protect the clinician, provided there is a
credible nexus between physician activity and substantial
government interest, and if certain requirements pertaining
to government ownership or interest, as well as the nature
of physician activity are shown. Federal reform led to the
evolution of the sovereign immunity doctrine in 1946;
since then, many states have adopted statutes designed to
facilitate medical care, teaching, volunteer service, staffing
of indigent hospitals, and medical service overseas,
including during times of military operation. For clinicians

desiring more precise information on this subject, an
examination of their respective state laws concerning
sovereign immunity to medical providers will be
instructive.
Acknowledgments I thank B. Sonny Bal, MD JD MBA for orga-
nizing the symposium and for his encouragement and editing in
writing this article. Also, I gratefully acknowledge the
contribution of
Steve Friedman, Senior Editor at the University of Missouri,
Department of Orthopaedic Surgery.
References
1. Defense of Certain Suits Arising out of Medical Malpractice,
10
USC §1089 (1988).
2. Exceptions, 28 USC §2680a-n (1982).
3. Federal Tort Claims Act, 28 USCA §2674 (1982).
4. Feres v United States, 340 US 135, 139 (1950).
5. Fla Stat Ann § 768.28 (West 1997 & Supp. 1998).
6. Henderson v Blumink, 511 F22d 399, 403-404 (DC Cir 1974).
7. Indian Towing Co. v United States, 350 US 61, 76 SCt 122
(1955).

8. James v. Jane, 221 Va. 43, 282 SE2d 864 (1981).
9. Jury Trial in Actions Against United States, 28 USC §2402
(1982).
10. Keeton WP, Dobbs DB, Keeton RE, Owen DG. Prosser and
Keeton on the Law of Torts 5th ed. St. Paul, MN; West; 1984.
11. Morton v United States, 2287 F2d 431 (DC Cir 1955).
12. Osborn v Bank of the United States, 22 US 738, 6 LEd 204
(1824).
13. Ross v United States, 640 F2d 511 (5th Cir 1981).
14. S. Rep. No. 1264, 94th Cong, 2nd Sess 4 (1976) 4440–4459.
15. Sullivan v United States, 129 F Supp 713 (ND Ill. 1955).
16. Supchack v United States, 365 F2d 844 (3rd Cir 1966).
17. Time for Commencing Action Against United States, 28
USC
§2401b (1982).
18. United States as Defendant, 28 USC §1346b (1982).
Volume 470, Number 5, May 2012 Sovereign Immunity and
Medical Malpractice Law 1369
123
Sovereign Immunity: Principles and Application in Medical
MalpracticeAbstractBackgroundQuestions/purposesMethodsRes
ultsConclusionsIntroductionSearch Strategy and CriteriaThe
Doctrine of Sovereign ImmunityThe Federal Tort Claims
ActMedical Malpractice Immunity ActUS State Sovereign
ImmunityThe Virginia TestThe Florida

ApproachDiscussionAcknowledgmentsReferences
The Federal Tort Claims Act (FTCA):
A Legal Overview
Updated November 20, 2019
Congressional Research Service
https://crsreports.congress.gov
R45732
SUMMARY
The Federal Tort Claims Act (FTCA):
A Legal Overview
A plaintiff injured by a defendant’s wrongful act may file a tort
lawsuit to recover money from
that defendant. To name a particularly familiar example, a
person who negligently causes a

vehicular collision may be liable to the victim of that crash. By
forcing people who wrongfully
injure others to pay money to their victims, the tort system
serves at least two functions:
(1) deterring people from injuring others and (2) compensating
those who are injured.
Employees and officers of the federal government occasionally
commit torts just like other members of the general public.
For a substantial portion of this nation’s history, however,
plaintiffs injured by the tortious acts of a federal officer or
employee were barred from filing lawsuits against the United
States by “sovereign immunity”—a legal doctrine that
ordinarily prohibits private citizens from haling a sovereign
state into court without its consent. Until the mid-20th century,
a
tort victim could obtain compensation from the United States
only by persuading Congress to pass a private bill
compensating him for his loss.
Congress, deeming this state of affairs unacceptable, enacted
the Federal Tort Claims Act (FTCA), which authorizes
plaintiffs to obtain compensation from the United States for the
torts of its employees. However, subjecting the federal
government to tort liability not only creates a financial cost to
the United States, it also creates a risk that government

officials may inappropriately base their decisions not on
socially desirable policy objectives, but rather on the desire to
reduce the government’s exposure to monetary damages. In an
attempt to mitigate these potential negative effects of
abrogating the government’s immunity from liability and
litigation, the FTCA limits the circumstances in which a
plaintiff
may pursue a tort lawsuit against the United States. For
example, the FTCA contains several exceptions that
categorically bar
plaintiffs from recovering tort damages in certain categories of
cases. Federal law also restricts the types and amount of
damages a victorious plaintiff may recover in an FTCA suit.
Additionally, a plaintiff may not initiate an FTCA lawsuit
unless
he has timely complied with a series of procedural
requirements, such as providing the government an initial
opportunity to
evaluate the plaintiff’s claim and decide whether to settle it
before the case proceeds to federal court.
Since Congress first enacted the FTCA, the federal courts have
developed a robust body of judicial precedent interpreting the
statute’s contours. In recent years, however, the Supreme Court
has expressed reluctance to reconsider its long-standing
FTCA precedents, thereby leaving the task of potentially further
developing the FTCA to Congress. Some Members of

Congress have accordingly proposed legislation to modify the
FTCA in various respects, such as by broadening the
circumstances in which a plaintiff may hold the United States
liable for torts committed by government employees.
R45732
November 20, 2019
Kevin M. Lewis
Legislative Attorney
The Federal Tort Claims Act (FTCA): A Legal Overview
Contents
Introduction
...............................................................................................
...................................... 1
Background
...............................................................................................
...................................... 3
The Preclusion of Individual Employee Tort Liability Under the

FTCA ........................................ 7
Employees and Independent Contractors
.................................................................................. 8
The Boyle Rule
...............................................................................................
................... 10
Scope of Employment
...............................................................................................
............... 11
Attorney General Certification
...............................................................................................
. 13
Exceptions to the FTCA’s Waiver of Sovereign Immunity
........................................................... 16
The Discretionary Function Exception
................................................................................... 18
Whether the Challenged Conduct Is Discretionary
........................................................... 19
Whether Policy Considerations Influence the Exercise of the
Employee’s
Discretion
...............................................................................................
........................ 22
The Intentional Tort
Exception................................................................................
................ 24
The Exception to the Intentional Tort Exception: The Law
Enforcement Proviso ........... 26
The Foreign Country Exception
..............................................................................................

27
The Military Exceptions
...............................................................................................
........... 28
The Combatant Activities Exception
................................................................................ 28
The Feres Doctrine
...............................................................................................
............ 29
Other Limitations on Damages Under the FTCA
.......................................................................... 31
Procedural
Requirements..........................................................................
..................................... 33
Legislative Proposals to Amend the FTCA
................................................................................... 36
Proposals to Abrogate or Modify Feres
.................................................................................. 38
Private Bills
...............................................................................................
.............................. 40
Contacts
Author Information
...............................................................................................
......................... 41

Congressional Research Service 1
Introduction
A plaintiff injured by a defendant’s wrongful conduct may file a
tort lawsuit to recover money
from that defendant.
1
To name an especially familiar example of a tort, “a person
who causes a
crash by negligently driving a vehicle is generally liable to the
victim of that crash.”
2
By forcing
people who wrongfully injure others to pay money to their
victims, the tort system serves at least
two functions: (1) “deter[ring] people from injuring others” and
(2) “compensat[ing] those who
are injured.”
3
Employees and officers of the federal government occasionally
commit torts just like other
members of the general public.
4

Until the mid-20th century, however, the principle of
“sovereign
immunity”—a legal doctrine that bars private citizens from
suing a sovereign government without
its consent—prohibited plaintiffs from suing the United States
for the tortious actions of federal
officers and employees.
5
Thus, for a substantial portion of this nation’s history, persons
injured by
torts committed by the federal government’s agents were
generally unable to obtain financial
compensation through the judicial system.
6
Congress, deeming this state of affairs unacceptable, ultimately
enacted the Federal Tort Claims
Act (FTCA) in 1946.
7
The FTCA allows plaintiffs to file and prosecute certain types
of tort
lawsuits against the United States and thereby potentially
recover financial compensation from
the federal government.
8
Some FTCA lawsuits are relatively mundane; for instance, a
civilian

may sue the United States to obtain compensation for injuries
sustained as a result of minor
accidents on federal property.
9
Other FTCA cases, however, involve grave allegations of
government misfeasance. For example, after naval officers
allegedly sexually assaulted several
1 See, e.g., Tort, BLACK’S LAW DICTIONARY (10th ed.
2014) (defining “tort” as “a civil wrong, other than breach of
contract, for which a remedy may be obtained, usu[ally] in the
form of [monetary] damages”). See generally CRS In
Focus IF11291, Introduction to Tort Law, by Kevin M. Lewis
(describing tort law, its purposes, and its relevance to
Congress).
2 Bryant Walker Smith, Automated Driving and Product
Liability, 2017 MICH. ST. L. REV. 1, 66. See also Jeffrey
Axelrad, Federal Tort Claims Act Administrative Claims: Better
Than Third-Party ADR For Resolving Federal Tort
Claims, 52 ADMIN. L. REV. 1331, 1332 (2000) (describing “an
automobile accident” as a “paradigm” example of a tort).
3 E.g., Alberto Galasso & Hong Luo, Tort Reform and
Innovation, 60 J.L. & ECON. 385, 386 (2017). See also John C.
P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513,

514–83 (2003) (discussing various scholarly accounts
of the purposes of tort law).
4 See, e.g., Limone v. United States, 579 F.3d 79, 83 (1st Cir.
2009) (affirming district court’s determination that
several Federal Bureau of Investigation (FBI) agents committed
various torts).
5 E.g., Paul Figley, Ethical Intersections & The Federal Tort
Claims Act: An Approach for Government Attorneys, 8 U.
ST. THOMAS L.J. 347, 348–49 (2011) [hereinafter Figley,
Ethical Intersections] (explaining that “[f]or a century and a
half, . . . the United States’ sovereign immunity . . . protected it
from suit[s]” filed by “citizens injured by the torts of
federal employees”).
6 Axelrad, supra note 2, at 1332 (“Until the Federal Tort Claims
Act was enacted in 1946, no general remedy existed
for torts committed by federal agency employees.”). See also
Figley, Ethical Intersections, supra note 5, at 348
(explaining that, until 1946, “the only practical recourse for
citizens injured by the torts of federal employees was to
ask Congress to enact private legislation affording them
relief”).
7 28 U.S.C. §§ 1346(b), 2671–80. See also, e.g., id. §§ 2401(b),
2402 (additional provisions of the U.S. Code that apply

in FTCA cases). See also infra “Background” (describing the
circumstances leading to the FTCA’s enactment in 1946).
8 See, e.g., 28 U.S.C. § 2674 (“The United States shall be
liable, respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a private
individual under like circumstances.”).
9 See, e.g., Gibson v. United States, 809 F.3d 807, 809–10 (5th
Cir. 2016) (lawsuit seeking compensation for injuries
the plaintiff allegedly sustained as a result of falling off a
stepladder while exiting a trailer owned by the Federal
Emergency Management Agency).
women at the infamous Tailhook Convention in 1991, those
women invoked the FTCA in an
attempt to hold the United States liable for those officers’
attacks.
10
Family members of persons
killed in the 1993 fire at the Branch Davidian compound in
Waco likewise sued the United States

under the FTCA, asserting that federal law enforcement agents
committed negligent acts that
resulted in the deaths of their relatives.
11
Additionally, the U.S. Court of Appeals for the First
Circuit
12
affirmed an award of over $100 million against the United
States in an FTCA case
alleging that the Federal Bureau of Investigation (FBI)
committed “egregious government
misconduct” resulting in the wrongful incarceration of several
men who were falsely accused of
participating in a grisly gangland slaying.
13
Empowering plaintiffs to sue the United States can ensure that
persons injured by federal
employees receive compensation and justice. However, waiving
the government’s immunity from
tort litigation comes at a significant cost: the U.S. Department
of the Treasury’s Bureau of the
Fiscal Service (Bureau) reports that the United States spends
hundreds of millions of dollars

annually to pay tort claims under the FTCA,
14
and the Department of Justice reports that it
handles thousands of tort claims filed against the United States
each year.
15
Moreover, exposing
the United States to tort liability arguably creates a risk that
government officials may
inappropriately base their decisions “not on the relevant and
applicable policy objectives that
should be governing the execution of their authority,” but rather
on a desire to reduce the
government’s “possible exposure to substantial civil liability.”
16
As explained in greater detail below, the FTCA attempts to
balance these competing
considerations by limiting the circumstances in which a plaintiff
may successfully obtain a
damages award against the United States.
17
For example, the FTCA categorically bars plaintiffs

10 Hallett v. United States, 877 F. Supp. 1423, 1425 (D. Nev.
1995). The court ultimately dismissed the plaintiffs’
claims against the United States on a variety of grounds. See id.
at 1427–32; Hallett v. United States, 850 F. Supp. 874,
877–83 (D. Nev. 1994).
11 See Andrade v. Chojnacki, 65 F. Supp. 2d 431, 441, 446
(W.D. Tex. 1999). The United States ultimately prevailed at
trial and on appeal. See Andrade v. Chojnacki, 338 F.3d 448,
453 (5th Cir. 2003).
12 This report periodically references decisions by federal
appellate courts of various regional circuits. For purposes of
brevity, references to a particular circuit in the body of this
report (e.g., the First Circuit) refer to the U.S. Court of
Appeals for that particular circuit.
13 See Limone v. United States, 579 F.3d 79, 83–84, 102, 108
(1st Cir. 2009). See also Bravo v. United States, 583 F.3d
1297, 1299 n.2 (11th Cir. 2009) (Carnes, J., concurring in the
denial of rehearing en banc) (opining that “[t]he facts in
the Limone case grew out of one of the darkest chapters in the
history of the FBI, which involved rampant misconduct
and corruption in the Boston office spanning a period of at least
two decades”).
14 The Bureau’s Annual Report to Congress for Fiscal Year
2018, https://fiscal.treasury.gov/judgment-fund/annual-

report-congress.html, lists all payments that the United States
made to individual claimants under the FTCA and other
compensatory statutes between October 1, 2017, and September
30, 2018. The sum of the “Confirmed Payment
Amounts” for all reported “Litigative Payments” and
“Administrative Payments” pursuant to the FTCA equaled a
total
of $318,912,807.83. This value includes only those payments
that the Bureau explicitly coded as “Federal Tort Claims
Act” payments.
15 Table 5 of the United States Attorneys’ Annual Statistical
Report,
https://www.justice.gov/usao/page/file/1199336/download,
reports that plaintiffs filed 3,009 tort cases against the
United States during FY2018, and that an additional 4,211 tort
cases against the federal government remained pending
from the previous year. In addition, the report states that the
Department of Justice received 3,051 new tort-related civil
matters during FY2018.
16 Mark C. Niles, “Nothing But Mischief”: The Federal Tort
Claims Act and the Scope of Discretionary Immunity, 54
ADMIN. L. REV. 1275, 1309 (2002).
17 See Gregory C. Sisk, Official Wrongdoing and the Civil

Liability of the Federal Government and Officers, 8 U. ST.
THOMAS L.J. 295, 322 (2011) (“The claim for individual
justice in court to an aggrieved person or entity must be
balanced against the common good advanced by effective
collective measures of government and the preservation of
democratic rule.”); David W. Fuller, Intentional Torts and Other
Exceptions to the Federal Tort Claims Act, 8 U. ST.
from pursuing certain types of tort lawsuits against the United
States.
18
The FTCA also restricts
the types and amount of monetary damages that a plaintiff may
recover against the United
States.
19
Additionally, the FTCA requires plaintiffs to comply with an
array of procedural
requirements before filing suit.
20

This report provides an overview of the FTCA.
21
It first discusses the events and policy concerns
that led Congress to enact the FTCA, including the background
principle of sovereign
immunity.
22
The report then explains the effect, scope, and operation of the
FTCA’s waiver of the
United States’ immunity from certain types of tort claims.
23
In doing so, the report describes
categorical exceptions to the government’s waiver of sovereign
immunity,
24
statutory limitations
on a plaintiff’s ability to recover monetary damages under the
FTCA,
25
and the procedures that
govern tort claims against the United States.
26
The report concludes by discussing various

legislative proposals to amend the FTCA.
27
Background
A person injured by the tortious activity of a federal employee
generally has two potential targets
that he might name as a defendant in a tort lawsuit: (1) the
federal employee who committed the
tort and (2) the federal government itself.
28
In many cases, however, suing the employee is not a
viable option.
29
For one, as explained in greater detail below, Congress has
opted to shield federal
officers and employees from personal liability for torts
committed within the scope of their
employment.
30
Even if Congress had not decided to insulate federal employees
from tort liability,
suing an individual is typically an unattractive option for
litigants, as individual defendants may
lack the financial resources to satisfy an award of monetary

damages.
31
THOMAS L.J. 375, 377 (2011) (“While a concern for fairness
and equity in favor of aggrieved plaintiffs certainly
motivated legislators, that concern had to be balanced against
others and was not the only impetus behind the FTCA.”);
Niles, supra note 16, at 1296 (“The critical objective in
providing for governmental exposure to tort liability is arriving
at the proper balance between positive disincentives for
negligent and unreasonable activity on the one hand and
negative liability threats which distort the proper decision
making process on the other.”).
18 See infra “Exceptions to the FTCA’s Waiver of Sovereign
Immunity.”
19 See infra “Other Limitations on Damages.”
20 See infra “Procedural Requirements.”
21 This report is not intended to provide an exhaustive
treatment of all topics related to the FTCA. Treatises that
analyze
the FTCA in greater depth include LESTER S. JAYSON &
HON. ROBERT C. LONGSTRETH, HANDLING TORT
CLAIMS:
ADMINISTRATIVE AND JUDICIAL REMEDIES (2005) and

GREGORY C. SISK, LITIGATION WITH THE FEDERAL
GOVERNMENT:
CASES AND MATERIALS (Foundation Press, 2d ed. 2008).
22 See infra “Background.”
23 See infra id.; “The Preclusion of Individual Employee Tort
Liability Under the FTCA.”
24 See infra “Exceptions to the FTCA’s Waiver of Sovereign
Immunity.”
25 See infra “Other Limitations on Damages.”
26 See infra “Procedural Requirements.”
27 See infra “Legislative Proposals to Amend the FTCA.”
28 See Harbury v. Hayden, 522 F.3d 413, 417 (D.C. Cir. 2008).
29 See id.
30 See infra “The Preclusion of Individual Employee Tort
Liability Under the FTCA.”
31 See, e.g., Stephen G. Gilles, The Judgment-Proof Society, 63
WASH. & LEE L. REV. 603, 606 (2006) (“[W]hen it
comes to larger, litigable [tort] claims, many Americans are
‘judgment-proof’: They lack sufficient assets (or sufficient
collectible assets) to pay the judgment in full (or even in
substantial part).”); Harbury, 522 F.3d at 417 (describing
“federal employee[s]” as “potentially judgment-proof”).

For many litigants, the legal and practical unavailability of tort
claims against federal employees
makes suing the United States a more attractive option.
32
Whereas a private defendant may lack
the financial resources to satisfy a judgment rendered against
him, the United States possesses
sufficient financial resources to pay virtually any judgment that
a court might enter against it.
33
A plaintiff suing the United States, however, may nonetheless
encounter significant obstacles.
34
In
accordance with a long-standing legal doctrine known as
“sovereign immunity,” a private plaintiff
ordinarily may not file a lawsuit against a sovereign entity—
including the federal government—

unless that sovereign consents.
35
For a substantial portion of this nation’s history, the doctrine
of
sovereign immunity barred citizens injured by the torts of a
federal officer or employee from
initiating or prosecuting a lawsuit against the United States.
36
Until 1946, “the only practical
recourse for citizens injured by the torts of federal employees
was to ask Congress to enact
private legislation affording them relief”
37
through “private bills.”
38
Some, however, criticized the public bill system.
39
Not only did private bills impose “a substantial
burden on the time and attention of Congress,”
40
some members of the public became
increasingly concerned “that the private bill system was unjust
and wrought with political

favoritism.”
41
Thus, in 1946, Congress enacted the FTCA,
42
which effectuated “a limited waiver
32 See Harbury, 522 F.3d at 417.
33 See Figley, Ethical Intersections, supra note 5, at 361 (“From
the perspective of a plaintiff . . . for whom the FTCA
provides a remedy, the government is the very best sort of deep
pocket defendant.”); Axelrad, supra note 2, at 1333
(describing the United States as “the ultimate ‘deep pocket’”);
Richard H. Seamon, Causation and the Discretionary
Function Exception to the Federal Tort Claims Act, 30 U.C.
DAVIS L. REV. 691, 739 (1997) (“There is no defendant
with a deeper pocket than the United States.”). To that end,
Congress has created a standing appropriation from which
successful claimants may collect FTCA judgments and
settlements known as the “Judgment Fund.” 31 U.S.C. § 1304.
See also James E. Pfander & Neil Aggarwal, Bivens, the
Judgment Bar, and the Perils of Dynamic Textualism, 8 U. ST.
THOMAS L.J. 417, 426–27 & nn.51–52 (describing the
Judgment Fund and its history); Figley, Ethical Intersections,

supra note 5, at 352–54 (same).
34 See Harbury, 522 F.3d at 417.
35 E.g., Pornomo v. United States, 814 F.3d 681, 687 (4th Cir.
2016) (“The default position is that the federal
government is immune to suit.”); Lipsey v. United States, 879
F.3d 249, 253 (7th Cir. 2018) (“The United States as
sovereign is immune from suit unless it has consented to be
sued.”); Evans v. United States, 876 F.3d 375, 380 (1st Cir.
2017), cert. denied, 139 S. Ct. 81 (2018) (“The United States is
immune from suit without its consent.”).
36 Figley, Ethical Intersections, supra note 5, at 348–49
(explaining that, “for a century and a half, . . . the United
States’ sovereign immunity . . . protected it from suit” against
“citizens injured by the torts of federal employees”).
37 Id. at 348. See also Axelrad, supra note 2, at 1332 (“Until
the [FTCA] was enacted in 1946, no general remedy
existed for torts committed by federal agency employees.”).
38 See, e.g., Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983).
39 Figley, Ethical Intersections, supra note 5, at 350 (claiming
that “Members of Congress had long recognized that”
private bills were “a poor way to resolve private claims against
the government”).
40 Id. See also Helen Hershkoff, Early Warnings, Thirteenth

Chimes: Dismissed Federal-Tort Suits, Public
Accountability, and Congressional Oversight, 2015 MICH. ST.
L. REV. 183, 187 (describing the significant burdens of
“investigating the thousands of tort claims submitted to
[Congress] each year for payment and enacting legislation for
any claimant Congress chose to compensate”).
41 Stephen L. Nelson, The King’s Wrongs and the Federal
District Courts: Understanding the Discretionary Function
Exception to the Federal Tort Claims Act, 51 S. TEX. L. REV.
259, 267 (2009). See also Axelrad, supra note 2, at 1332
(“Favoritism in Congress . . . could make or break the
claimant’s ability to be made whole.”).
42 See, e.g., Nelson, supra note 41, at 268–71 (discussing the
FTCA’s legislative history).
of [the federal government’s] sovereign immunity”
43
from certain common law
44
tort claims.

45
With certain exceptions and caveats discussed throughout this
report, the FTCA authorizes
plaintiffs to bring civil lawsuits
1. against the United States;
2. for money damages;
3. for injury to or loss of property, or personal injury or death;
4. caused by a federal employee’s46 negligent or wrongful act
or omission;
5. while acting within the scope of his office or employment;
6. under circumstances where the United States, if a private
person, would be liable
to the plaintiff in accordance with the law of the place where
the act or omission
occurred.
47
Thus, not only does the FTCA “free Congress from the burden
of passing on petitions for private
relief”
48
by “transfer[ring] responsibility for deciding disputed tort
claims from Congress to the

courts,”
49
it also creates a mechanism to compensate victims of
governmental wrongdoing.
50
In
addition to this compensatory purpose, the FTCA also aims to
“deter tortious conduct by federal
43 E.g., Evans v. United States, 876 F.3d 375, 380 (1st Cir.
2017), cert. denied, 139 S. Ct. 81 (2018).
44 Notably, however, “the United States . . . has not rendered
itself liable under [the FTCA] for constitutional tort
claims.” FDIC v. Meyer, 510 U.S. 471, 478 (1994) (emphasis
added). See also Dianne Rosky, Respondeat Inferior:
Determining the United States’ Liability for the Intentional
Torts of Federal Law Enforcement Officials, 36 U.C. DAVIS
L. REV. 895, 942 n.166 (2003) (“Repeated subsequent attempts
to pass legislation creating federal liability for
constitutional torts have failed.”). As a general matter, “federal
constitutional claims for damages are cognizable only
under” the Supreme Court’s decision in Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), “which runs against individual governmental

officers personally,” Loumiet v. United States, 828 F.3d
935, 945 (D.C. Cir. 2016), or under the Tucker Act, which
waives the government’s immunity against certain types of
constitutional claims under specified conditions. See, e.g.,
Paret-Ruiz v. United States, 827 F.3d 167, 176 (1st Cir.
2016) (citing 28 U.S.C. § 1491(a)(1)). Nevertheless—and as
explained below—even though constitutional tort claims
are not themselves actionable under the FTCA, whether a
government employee transgressed constitutional bounds
while performing his duties may nonetheless inform whether an
exception to the FTCA’s general waiver of sovereign
immunity bars a plaintiff’s nonconstitutional tort claim. See
infra notes 193–198 and accompanying text.
45 In addition to the FTCA, other federal statutes may also
allow persons to obtain compensation from the United States
for injuries or property damage caused by an individual acting
on the United States’s behalf. See, e.g., 10 U.S.C.
§ 2733(a) (allowing the armed forces to “settle[] and pay”
certain “claim[s] against the United States for” property loss,
personal injury, or death caused by an officer or employee of
the armed forces); id. …
Green, Ashbel. High Court lifts limit on OHSU Liability”.
The Oregonian (December 29, 2007) Pg. A01
The Oregon Supreme Court ruled Friday that the family of a

brain-damaged child can pursue millions of dollars from Oregon
Health & Science University, opening the door for people hurt
by any public employee to seek full compensation for their
injuries.
The court ruled that a liability cap of $200,000 designed to
protect government agencies from expensive lawsuits violates
the constitutional rights of Jordaan Michael Clarke, 9, who
suffered permanent brain damage in 1998 while in intensive
care at OHSU Hospital. "We're just thankful that there is
justice for my son," said Sari Clarke, the boy's mother.
The impact of the ruling goes far beyond the Clarke case, which
heads back to Multnomah County Circuit Court. The ruling
could cost the state up to $75 million per biennium in lawsuit
payouts, predicted Terri Sahli, Oregon's risk manager.
The decision extends beyond OHSU and state agencies,
affecting all local governments, school districts and special
districts in Oregon. There was no immediate estimate on
potential local costs because there are so many public agencies
covered by the ruling. The decision cannot be appealed, but the
majority opinion by Chief Justice Paul J. De Muniz left open
the possibility that the Legislature could satisfy the Oregon
Constitution by raising the caps.
In a concurring opinion, Justice Thomas Balmer went further:
"The arbitrarily low cap on damages for medical malpractice
claims against OHSU and its employees is a problem that has
long called for a legislative solution," Balmer wrote. "In my
view, the Legislature should, at least for medical malpractice
claims, increase the existing claims limit substantially and
immediately and, perhaps, retroactively."
Sen. Ginny Burdick, D-Portland, said the Legislature earlier this
year looked at raising the caps to between $1 million and $2

million but couldn't reach an agreement that satisfied various
groups, including trial lawyers and OHSU. "The one thing that
everyone can agree on," Burdick said, "is that the caps that exist
now are not realistic." Senate President Peter Courtney, D-
Salem, said he didn't know whether the Legislature would take
another run at adjusting the caps when it meets in February.
"I'd like to raise the caps," Courtney said. "The question is: Can
we build the consensus that we need to make it happen?" The
case drew unusual attention --11 "friend of the court" briefs
were filed by lawyers representing cities, counties, special
districts, schools, physicians, attorneys and businesses.
Portland, for example, receives about 800 claims a year for
injuries or property damage by caused city employees, but few
of the demands exceed the liability caps, said John Buehler, a
senior claims analyst in the office of risk management. Tom
Steenson, an attorney who handles civil rights suits against the
police and employment cases, said he did not expect the ruling
to significantly help his clients. "There are frankly not that
many cases where the caps come into play --not in the police
area," Steenson said.
Multnomah County Attorney Agnes Sowle said the biggest
impact would likely be on health care providers. The county
provides health services for the poor and medical care for jail
inmates. But Sowle said that she had never seen a lawsuit
against the county that was anything like the Jordaan Clarke
lawsuit, which seeks $17 million. "We just haven't had any
case that I'd even consider a million-dollar case," she said.
Technically, the Supreme Court ruling did not void the liability
caps, which include $50,000 for property damage suits,
$200,000 for personal injury cases and $500,000 for cases
involving multiple plaintiffs. Rather, the court said OHSU
could not use the $200,000 cap to avoid the liability of the

medical staff named in the lawsuit. The ruling also took pains
to say that it was only directly addressing Jordaan Clarke's case,
noting the disparity between the cap and the boy's medical
costs.
De Muniz said that in Jordaan Clarke's case, the cap
"emasculated" his constitutional right to recover damages for
the injuries he suffered. Bill Gaylord, a Portland attorney
representing the family, said Jordaan Clarke has severe brain
damage. He can't walk. He can't communicate," Gaylord said.
"It's fair to say that he has no ability to do anything at all for
himself."
The boy's family, Clark County residents, are on public
assistance in Washington and are full-time caregivers, he said.
At a news conference Friday morning, Jordaan appeared with
his mother and grandmother. Sitting in a wheelchair, he
breathed loudly and laboriously. Sari Clarke, tearing up as she
spoke, said money might bring her son some comfort in his
care, but it would not restore the life he lost. "My son would be
playing," she said. "He would be running and playing."
APPELATE COURT DECISION:
Green, Ashbel, and Michelle Roberts, “OHSU loses liability cap
in suit”. The Oregonian (July 6, 2006). Pg. A01
The Oregon Court of Appeals on Wednesday ruled that the
family of a brain-damaged child could seek millions of dollars
despite a state law that limits Oregon Health & Science
University's liability to $200,000. The unanimous decision
restarts a lawsuit on behalf of Jordaan Michael Clarke, whose
family sued for more than $17 million after the boy suffered
permanent brain damage in 1998 while in intensive care at
OHSU Hospital.

A state law limits jury awards against public agencies such as
OHSU --in this case $100,000 in general damages and $100,000
in special damages. But the Court of Appeals ruled that while
such limits protect public agencies, they do not protect the
public employees of those agencies. If they did, the court ruled,
the limits would violate an injured person's constitutional right
to seek a full remedy from negligent public employees. And
because state law requires government agencies to pay awards
against their employees, the ruling effectively eliminates the
cap protecting public agencies.
OHSU officials say they intend to appeal, saying that the ruling
threatens to cost the university millions of dollars in increased
medical malpractice premiums. They also point out that the
decision reaches far beyond OHSU. The decision "has
enormous implications for the state and all other public bodies
in the state --cities, school districts, counties, ports --as well as
OHSU," hospital officials said in a statement. "We expect that
for public bodies as a whole the total impact will be in the
range of tens of millions to hundreds of millions of dollars."
But for the family of the brain-damaged boy, the ruling was
about basic fairness. "We hope this means that someday we
will have the resources to take care of Jordaan the way he
deserves to be cared for," said Eva Diseth, Jordaan's
grandmother and one of his primary caregivers.
A few months after his birth at OHSU, Jordaan Clarke was
readmitted for surgery to repair a congenital heart defect. After
doctors repaired the heart defect, they placed him in a surgical
intensive care unit at OHSU where he suffered "prolonged
oxygen deprivation causing permanent and profound brain
damage," according to the Court of Appeals ruling.
A negligence suit filed against OHSU claimed that Jordaan was
"totally and permanently disabled, essentially unaware of his

surroundings, permanently unable to communicate with other
persons, probably cortically blind, quadriplegic, epileptic,
spastic, uneducable, and totally permanently dependent on care-
givers for all aspects of daily activities and life care," according
to the Court of Appeals ruling.
The suit sought $11,073,506 for "permanent total life and health
care," $1.2 million in lost earning capacity and $5 million for
pain and suffering. The lawsuit named OHSU and the medical
professionals responsible for his care, but a judge agreed that
under state law, the suit could only move forward against the
university. OHSU then invoked an Oregon law that limited
damages to $200,000 in the case.
The Court of Appeals agreed that the damage cap applied to
OHSU, a public entity. But the court said it was
unconstitutional to prevent the suit from seeking the full
damages against the individual employees. The reasoning, the
court said, is that the state constitution requires that ". . . every
man shall have remedy by due course of law for injury done him
in his person, property, or reputation."
When OHSU substituted itself for the actions of its employees,
it "emasculated" the Clarkes' constitutional remedy, the court
said.
Most states limit liability. Bill Gaylord, lead attorney for the
plaintiffs, praised the ruling. "We have said from the beginning
that the Oregon Constitution gives citizens a right to a remedy
when they've been wronged," Gaylord said. "A state that
immunizes its workers from lawsuits is a violation of that right.
I'm not surprised that that's what the court says, too."
Most states limit the liability of government agencies and their
employees. Thirty-eight states have damages caps that apply in
a variety of ways. OHSU officials say the effective elimination

of Oregon's liability cap would have serious fiscal implications.
Last month, an insurance brokerage firm hired by the hospital
determined that it could expect to pay about $14.5 million a
year in added malpractice insurance premiums and to settle and
administer claims without limits on damage awards.
The firm, Chicago-based Aon Corp., said OHSU also could
expect to pay additional one-time costs of $19.7 million to
cover medical malpractice claims currently pending against the
hospital. The study's authors cautioned that its cost estimates
hinge on a number of assumptions, including whether OHSU
would face more lawsuits without the cap and whether cases
might settle or go to a jury.
Malpractice premium estimates. Aon estimated that OHSU's
incremental annual cost increase could range from $8.7 million
a year in a best-case scenario to $43 million in a worst-case
situation. The range for one-time costs is $14 million to $50
million.
Figures provided earlier this year by OHSU show that between
1995 and 2005, the hospital paid out $4.4 million --an average
of less than $100,000 --to settle cases that collectively sought
tens of millions of dollars. Although the decision applies to all
public agencies, most state and local officials said they were not
yet prepared to discuss the potential impact.
Like others, Senate President Peter Courtney, D-Salem, said he
had not read the opinion. But he was concerned about its
potential effects. "Obviously, legislative counsel is going to
have to look very carefully at it," Courtney said. "I need to
know how far-reaching this is going to be."
FINAL OUTCOME:
Har, Janie. “Bill Raises Oregon Malpractice Cap”. The
Oregonian (April 7, 2009)

SALEM --Lawmakers voted Monday to increase the maximum
amount Oregon government can pay in cases of medical
malpractice and other negligence by public employees. The
House voted 50-8 in favor of the bill, which dramatically
increases the old cap of $200,000. Senate Bill 311 now goes to
Gov. Ted Kulongoski for his signature.
All no votes came from Republicans. Several said they didn't
feel the bill went far enough in addressing runaway malpractice
insurance costs in the private sector. "We couldn't get that all
fixed in this bill," said Rep. Jeff Barker, D-Aloha, chairman of
the House Judiciary Committee. "This is a step in the right
direction."
The legislation calls for a two-tier system. The damages limit
for state agencies ranges from $1.5 million to $3 million and
increases to $2 million to $4 million after five years. The caps
for cities, counties, school boards and other local entities would
start at $500,000 per claim and $1 million per incident.
After that, the numbers would be indexed for inflation. Oregon's
liability limits have stayed unnaturally low for years with trial
lawyers and Oregon Health & Science University unable to
compromise.
In late 2007, the state Supreme Court essentially threw out the
caps in a ruling against the teaching and research hospital,
prompting the revision now on its way to the governor.
"The governor's been personally involved with working toward
a resolution on this issue, and he's very pleased to see the
Legislature and stakeholders move quickly to bring closure to
this," said his spokeswoman, Anna Richter Taylor.

Essays should be 4-6 double-spaced pages. They should be
written using only lectures and reading materials provided on
Moodle. Identify the sources for specific facts, concepts, and
quotes by simple parenthetical references. Since you are only to
use class materials, the instructor should easily be able to
identify the source.
For the essays, you cannot “cut and paste”. Use the materials
from class only and be sure to provide a simple reference, such
as (Powerpoint) or (Library of Congress).
Answer all parts of the chosen question. Demonstrate that you
have reviewed and understand any relevant information in that
section’s materials.
When useful to the answer, incorporate details such as case
names, author’s names, facts, and particularly specific terms or
jargon important to that subject.
The essays should be thematic. Sentences should be complete.
ESSAY ON SECTION 8: GOVERNMENT LIABILITY (Due
11:55 pm, June 10)
Always address each part of the question. Always include
specific details, terms, and cases that properly fit into the
analysis.
Scenario: You receive a call from Reverend Bea Openminded.
Openminded managed the lovely Church of the Flying Spaghetti
Monster on the banks of the North Fork of the Santiam River,
east of Salem. Recently the good reverend was at the church and
heard a tremendous roar and felt a rush of air coming from
upriver. Instinctively, she ran up to the road. She then turned

around to see a wall of water push through the canyon clearing
all the cars, buildings, and(presumably) people before it.
Evidently the damn managers from the US Corps of Engineers
that runs Big Cliff Dam had taken a calculated risk that it could
hold more water. Their effort to be ready for a drought led to
this disaster.
After the flood, Marion County declared it would waive permit
requirements for property owners to enable a faster rebuilding
in the flood zone. When Reverend Openminded started building
her replacement church, however, the county building inspector
said that she must stop. The inspector said the county would
only allow “proper” religions to re-build in that area.
Time for a lawyer …. So she calls you.
After noting that you only have had one undergraduate class in
Administrative Law, you agree to answer her questions to the
best of your ability.
Reverend Openminded asks you this:
1. What are the rules on suing the federal government and the
incompetents* who made the decision to try to store the extra
water? Can I sue the Corps of Engineers and its individual
employees?
2. What possibilities are there to sue the state of Oregon and
Marion County for not allowing me to re-build my church?
3. In your personal opinion, is the basic system of government
liability fair? Why, or why not?
*Please note the Corps has really good people and Openminded
is not being fair labelling them this way.
Berkovitz v. United States (1988)

486 U.S. 531
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Syllabus
A provision of the Federal Tort Claims Act (FTCA) excepts
from statutory liability any claim
based upon [a federal agency's or employee's] exercise or
performance or the failure to exercise or perform a discretionary
function or duty.
Upon contracting a severe case of polio after ingesting a dose of
Orimune, an oral polio vaccine manufactured by Lederle
Laboratories, petitioner Kevan Berkovitz, a minor, joined by his
parents (also petitioners) as guardians, filed an FTCA suit
alleging violations of federal law and policy by the National
Institutes of Health's Division of Biologic Standards (DBS) in
licensing Lederle to produce Orimune, and by the Bureau of
Biologics of the Food and Drug Administration (FDA) in
approving the release to the public of the particular lot of
vaccine containing Berkovitz's dose. The District Court denied
the Government's motion to dismiss the suit for lack of subject
matter jurisdiction, but the Court of Appeals reversed.
Although rejecting the Government's argument that the
discretionary function exception bars all claims arising out of
federal agencies' regulatory activities, the court held that the
licensing and release of polio vaccines are wholly discretionary
actions protected by the exception.
Held:

1. The language, purpose, and legislative history of the
discretionary function exception, as well as its interpretation in
this Court's decisions, establish that the exception does not
preclude liability for any and all acts arising out of federal
agencies' regulatory programs, but insulates from liability only
those governmental actions and decisions that involve an
element of judgment or choice and that are based on public
policy considerations. Pp. GO>535-539.
2. The Court of Appeals erred in holding that the discretionary
function exception bars petitioners' claims. Pp. GO>539-548.
(a) Statutory and regulatory provisions require the DBS, prior to
issuing a license for a product such as Orimune, to receive all
data which the manufacturer is required to submit, to examine
the product, and to make a determination that it complies with
safety standards. Thus, a cause of action based on petitioner's
allegation that the DBS licensed Orimune without first
receiving the required safety data is not barred by the
discretionary function exception, since the DBS has no
discretion to [486 U.S. 532] issue a license under such
circumstances, and doing so would violate a specific statutory
and regulatory directive. Petitioners' other claim -- that the
DBS licensed Orimune even though the vaccine did not comply
with certain regulatory safety standards -- if interpreted to mean
that the DBS issued the license without determining compliance
with the standards or after determining a failure to comply, also
is not barred by the discretionary function exception, since the
claim charges the agency with failing to act in accordance with
specific mandatory directives, as to which the DBS has no
discretion. However, if this claim is interpreted to mean that
the DBS made an incorrect compliance determination, the
question of the discretionary function exception's applicability

turns on whether the DBS officials making that determination
permissibly exercise policy choice, a point that is not clear from
the record and therefore must be decided by the District Court if
petitioners choose to press this interpretation. Pp. GO>540-
545.
(b) Although the regulatory scheme governing the public release
of vaccine lots allows the FDA to determine the appropriate
manner in which to regulate, petitioners have alleged that, under
the authority granted by the regulations, the FDA has adopted a
policy of testing all lots for compliance with safety standards
and of preventing the public distribution of any lot that fails to
comply, and that, notwithstanding this mandatory policy, the
FDA knowingly approved the release of the unsafe lot in
question. Accepting these allegations as true, as is necessary in
reviewing a dismissal, the holding that the discretionary
function exception barred petitioners' claim was improper, since
the acts complained of do not involve the permissible exercise
of discretion to release a noncomplying lot on the basis of
policy considerations. Pp. GO>545-548.
822 F.2d 1322, reversed and remanded.
MARSHALL, J., delivered the opinion for a unanimous Court.
[486 U.S. 533]
Excerpts from the Majority Opinion by Justice Marshall:
“….
The FTCA, 28 U.S.C. § 1346(b), generally authorizes suits
against the United States for 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, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.{GO>2}
The Act includes a number of exceptions to this broad waiver of
sovereign immunity. The exception relevant to this case
provides that no liability shall lie for
[a]ny claim . . . based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a). [486 U.S. 536] This exception, as we
stated in our most recent opinion on the subject,
marks the boundary between Congress' willingness to impose
tort liability upon the United States and its desire to protect
certain governmental activities from exposure to suit by private
individuals.
United States v. Varig Airlines, 467 U.S. at GO>808.
The determination of whether the discretionary function
exception bars a suit against the Government is guided by
several established principles. This Court stated in Varig that
it is the nature of the conduct, rather than the status of the
actor, that governs whether the discretionary function exception
applies in a given case.

Id. at GO>813. In examining the nature of the challenged
conduct, a court must first consider whether the action is a
matter of choice for the acting employee. This inquiry is
mandated by the language of the exception; conduct cannot be
discretionary unless it involves an element of judgment or
choice. See GO>Dalehite v. United States, 346 U.S. 15, GO>34
(1953) (stating that the exception protects "the discretion of the
executive or the administrator to act according to one's
judgment of the best course"). Thus, the discretionary function
exception will not apply when a federal statute, regulation, or
policy specifically prescribes a course of action for an employee
to follow. In this event, the employee has no rightful option but
to adhere to the directive. And if the employee's conduct
cannot appropriately be the product of judgment or choice, then
there is no discretion in the conduct for the discretionary
function exception to protect. Cf. GO>Westfall v. Erwin, 484
U.S. 292, GO>296-297 (1988) (recognizing that conduct that is
not the product of independent judgment will be unaffected by
threat of liability).
Moreover, assuming the challenged conduct involves an element
of judgment, a court must determine whether that judgment is of
the kind that the discretionary function exception was designed
to shield. The basis for the discretionary function exception
was Congress' desire to
prevent judicial [486 U.S. 537] "second-guessing" of legislative
and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.
United States v. Varig Airlines, supra, at GO>814. The
exception, properly construed, therefore protects only
governmental actions and decisions based on considerations of
public policy. See Dalehite v. United States, supra, at GO>36
("Where there is room for policy judgment and decision, there is

discretion"). In sum, the discretionary function exception
insulates the Government from liability if the action challenged
in the case involves the permissible exercise of policy
judgment.
….
If petitioners aver that the DBS licensed Orimune either without
determining whether the vaccine complied with regulatory
standards or after determining that the vaccine failed to comply,
the discretionary function exception does not bar the claim.
Under the scheme governing the DBS's regulation of polio
vaccines, the DBS may not issue a license except upon an
examination of the product and a determination that the product
complies with all regulatory standards. See 42 CFR § 73.5(a)
(Supp.1964); 21 CFR § 601.4 (1987). The agency has no
discretion to deviate from this mandated procedure.{GO>10}
Petitioners' claim, if interpreted as alleging that the DBS
licensed Orimune in the absence of a determination that the
vaccine complied with regulatory standards, therefore does not
challenge a discretionary function. Rather, the claim charges a
failure on the part of the agency to perform its clear duty under
federal law. When a suit charges an agency with failing to act
in accord with a specific mandatory directive, the discretionary
function exception does not apply.
….”
PAGE
1

SECTION VIII GOVERNMENT LIABILITYBeginning point Sovereig.docx

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