Can an injured person sue the federal government for his or her injuries? It’s a question I receive from time to time. The answer: it depends!
Injury claims brought against the U.S. government must be brought under the Federal Tort Claims Act.
Originally, the federal government was immune from personal injury lawsuits. That changed when Congress passed the Federal Tort Claims Act, waiving the government’s immunity in many cases.
The Federal Tort Claims Act has several exceptions–meaning that the Government’s immunity from these lawsuits still exists in these listed exceptions.
One of the exceptions is when the claim arises in a foreign country.
What does “arises” mean? That was the subject of a recent Ninth Circuit decision in S.H. v. United States.
S.H., a minor, was born on an Air Force base hospital in Spain in 2005. Her father, Air Force Master Sergeant Holt, was cleared by his Air Force physician to travel to Spain with his wife while she was pregnant with S.H.
S.H. was born premature while on the trip to Spain. S.H. suffered a birth injury that was later determined to be cerebral palsy. This diagnosis was not made until years later, when the family was stationed in South Carolina.
The family sued the U.S Government, arguing that the claim against the Air Force physician (who they claim negligently cleared Sgt. Holt to travel to Spain) “arose” at the time the child received the diagnosis in South Carolina years later. The District Court agreed, awarding over $10 million to S.H.’s parents.
The Ninth Circuit Court of Appeals disagreed. It held that the claim arose at the time of S.H.’s birth-not when they received the diagnosis.
Since the claim arose while they were in a foreign country, the foreign country exception to the Federal Tort Claims Act applied to bar the family’s claims against the U.S. Government.
A bit of a complicated case, but it illustrates that the Federal Government is still very much immune from lawsuits in certain cases. This case and the foreign country exception to the Federal Tort Claims Act could be the topic of another U.S. Supreme Court decision in the coming term.
For questions about your potential case against the government, the Rabbi Lawyer is ready to assist, 24/6!