Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Those who may qualify for FTCA coverage under this act include "any officer,
governing board member, or employee of such entity, and any contractor who is a
physician or other licensed or certified medical care practitioner." 42 U.S.C. §
233(g). Yet the analysis for individual physician coverage under the FTCA is a bit
trickier. If the physician is an employee of the covered facility, he or she is also
covered. If the physician is not a full-time employee of the covered facility, he or
she may still be protected as a contractor. To achieve contractor status, the
physician must, among other things, work an average of 32.5 hours per week at
the facility. 42 U.S.C. § 233(g)(5)(A).
Not every institution that receives federal dollars is afforded FTCA liability
protection. The entity must take certain affirmative steps to receive FTCA
coverage. 42 U.S.C. § 233. The facility must apply to the Secretary of Health and
Human Services for determination of whether the facility meets the requirements
to be deemed a PHS employee. The factors considered by the Secretary in making
this determination are: the facility's policies and procedures for reducing the risk
of malpractice; the credentials of its physicians and other practitioners; whether
the facility has filed claims against the United States as a result of this Act, and if
so, whether it has cooperated fully with the Attorney General and taken steps to
assure that such claims will not arise again; whether the facility provides
information that will help the Attorney General estimate the amount of claims that
will arise during the year. 42 U.S.C. § 233(h)(1)-(4).
If the facility or physician is considered a PHS employee and afforded FTCA
coverage, certain limitations must be noted. First, the coverage is not retroactive.
Therefore, the facility must have the Secretary's approval of PHS employee status
and FTCA coverage at the time of the injury. An entity's belief that it is covered is
not enough, regardless of the amount of federal funding it receives. Metcalf v.
West Suburban Hospital, 912 F. Supp. 382 (N.D. Ill. 1996).
Another important limitation is that FTCA protection extends only to acts within
the scope of the facility's grant. The facility does not get FTCA coverage for
activities that fall outside its grant. If the entity is unsure whether an injury arises
under an activity within the scope of the federal grant, the facility should appeal
to the Director of the Bureau of Primary Health Care for a determination.
5. Constitutional Torts - Bivens Actions
The Supreme Court created a private damages action against federal officials for
constitutional torts (civil rights violations), which are not covered by the FTCA. In
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), the Court held that the Fourth Amendment gives rise to a right of action
against federal law enforcement officials for damages from an unlawful search and
seizure. Since a Bivens action is brought against a federal official in the official’s
personal capacity, it is not considered to be an action against the United States and
therefore is not barred by sovereign immunity. Bivens is not a general tort law. The
plaintiff seeking a damages remedy under Bivens must first demonstrate that
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