Memorandum - Outside Requests for FTCA Coverage Verification and Claims History

FROM:
Paul R. Fowler D.O., J.D., FAOCOPM, FCLM, FAAFP
Risk Management Officer
IHS Office of Quality

DATE: November 20, 2023

In accordance with Federal law, health care clinicians employed by the Federal government and health care clinicians providing medical, surgical, dental, or related functions pursuant to an Indian Self-Determination and Education Assistance Act contract or compact ("Tribal provider") are provided medical malpractice liability protection under the Federal Tort Claims Act ("FTCA") for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, and related functions, which is exclusive of any other civil action or proceeding. This FTCA coverage applies to licensed, registered, or certified health care clinicians and other persons authorized to provide medical or other professional health care services within the scope of their official duties. 42 U.S.C. § 233; 25 U.S.C. § 5321.

The FTCA obviates the requirement that IHS employees and Tribal providers carry private malpractice insurance as the United States consents to be sued in place of Federal employees for any damages to property or for personal injury or death caused by the negligence or wrongful act or omission of Federal employees acting within the scope of their employment. 28 U.S.C. §§ 2671–2680.

FTCA coverage is comparable to an "occurrence" policy without a monetary cap. Therefore, any coverage limits that may be mandated by other organizations are met.

Determinations on whether an individual is covered under the FTCA is a factual determination made on a case-by-case basis by the Department of Health and Human Services Office of the General Counsel, the Department of Justice, and ultimately by the courts. IHS and its service units have no authority to make definitive advance assurances of FTCA protection or to "verify FTCA coverage."

Because most medical malpractice suits filed against IHS providers involved substitution by the United States of America as the defendant, IHS cannot provide a claims history for individual providers. IHS does report medical malpractice payments to the National Practitioner Data Bank ("NPDB") for the provider for whose benefit payment was made once the Department of Health and Human Services Medical Claims Review Panel has determined that the standard of care was not met. Kindly query the NPDB for any claims history involving an IHS or Tribal provider.

For further FTCA information, please contact the Claims and Employment Law Branch, General Law Division, Office of the General Counsel, Department of Health and Human Services, Washington, D.C., at (202) 619–2155.