Federal Tort Claims Act (FTCA) FAQ: What to Do If You’re Injured by a Government Employee

Section I: Understanding Your Rights After Being Injured by a Government Employee

Can I sue the government for injuring me?

Absolutely! Just because a party acting on behalf of the federal government, think of a USPS driver delivering the mail, decided to run a red light and hit you and your vehicle, does not mean the federal government is able to get away with causing you injury. You have the right to fight back! Hiring the right attorneys who are well-versed in FTCA Law (Federal Tort Claims Act), like those at Vito & Dollenmaier Law, ensures that you will obtain the maximum compensation you deserve for the injuries you have suffered.

What needs to happen for me to sue the government?

We have already talked about USPS, so let’s dive a little deeper into what they did by running a red light. If a USPS driver injures you while they are working for the federal government, you would have a valid claim against the federal government under the Federal Tort Claims Act. So long as the party who injured you is acting on behalf of the federal government, and the government can “control the detailed performance of the working party,” you can sue the federal government under the Federal Torts Claims Act. See, e.g., Logue v. United States, 412 U.S. 521, 527-28 (1973).

What is the Federal Tort Claims Act? Is that an Illinois Law?

The FTCA is a waiver of the sovereign immunity of the federal government passed by Congress. It allows injured parties to sue under the laws of the state where they were harmed, or where they live. 28 U.S.C. § 1402(b) (2018). The waiver of sovereign immunity under FTCA allows you, the injured party, to sue the federal government when, under regular circumstances, the federal government cannot be sued for damages. Following our USPS hypothetical, the FTCA allows you to bring a federal lawsuit against the federal government for its employees’ negligence in causing your injuries. 28 U.S.C. § 1346 (b)(1) (2018).

How is this different from an accident not involving the government?

Unlike other personal injury cases that are usually handled in state courts, claims against the federal government, under the FTCA, are heard in federal court. That’s because the FTCA is a federal law, and your rights under it are subject to the jurisdiction of the Federal Court System. Id.

Steps to take after an injury by USPS or a government agency

If you have been hurt, the very first step is to reach out to a personal injury attorney you trust. Like those at Vito & Dollenmaier Law. Share every detail: how the injury happened, the pain you’re feeling, and what you’ve experienced since the accident.

If you suspect a governmental employee, such as a USPS driver, is responsible for your harm, your attorneys can help determine whether you have a claim under the FTCA. Staying on top of time is crucial. Both in getting medical attention as quickly as possible and notifying the government of your claim. You, as the injured party, only have two years from the date of the injury to notify the government of the accident. 28 U.S.C. § 2401 (b) (2018).

What if I am still undergoing medical care two years after my accident?

If you have suffered an injury, like in the hypothetical with USPS, the clock to file a lawsuit starts ticking immediately. From the time you know you have been injured by a government employee, you have two years to inform the government that you have been injured by them. Now, do not think that you must wait for the treatment of your injuries to end before you inform the government. Your treatment can be ongoing, and you can inform the government of your injury all the same. Barnhart v. United States, 884 F.2d 295, 298 (7th Cir. 1989); see also Massey v. United States, 312 F.3d 272, 276 (7th Cir. 2002). Further, no matter who you are or how old, the same two-year clock applies to everybody. See Jastremski v. United States, 737 F.2d 666, 669 (7th Cir. 1984). Having an accurate record of your injury and providing that record to your attorney is imperative to ensure you receive the maximum compensation for your injuries.

What information will help your attorneys build your case?

Being proactive in gathering information in an organized fashion is crucial to your case. Here’s what you should gather:

Medical Providers
- A list of all medical providers you’ve visited for treatment.
- Medical records and billing statements, if provided.
- A description of the injuries or pain you are experiencing.
Witnesses
- Names and contact information for any witnesses to the accident.
  - This includes police officers, passengers, or bystanders who saw the accident occur.
Insurance Information
- Your own insurance details.
- The insurance information of the person or agency responsible.
Involved Government Agency
- The name of the specific agency responsible. Under our hypothetical, that would be USPS.

All of this helps your legal team file a Form 95, which is what gives the government notice under the FTCA and starts the process of a claim of recovery for the injured party.

What type of compensation can I demand for my injury via a Form 95?

The FTCA allows for relief to be awarded for personal injury via compensatory damages and damage to property.

Compensatory damages:
- Compensatory damages are intended to make you, the injured party, whole by reimbursing you for the actual harm you suffered. This includes things like medical bills, lost wages, pain and suffering, and loss of normal life. Under our hypothetical with the USPS driver, if the driver caused an accident and you were injured as a result, compensatory damages would cover your treatment costs, time missed from work, the pain and suffering you endured, and loss of enjoyment of your normal life while injured. These compensatory damages are recoverable under the FTCA, as long as you can prove that the federal employee, in our hypothetical, a USPS driver, was acting within the scope of their employment and acted negligently. 28 U.S.C. § 1346(b)(1) (2018).
Property damage:
- Property damage under the FTCA is recoverable, in full, by you, the injured party. Id. An example of property damage with our USPS hypothetical would be the damage sustained to your car after the USPS driver hit you. These costs could also include items damaged inside the vehicle, like a phone, tablet, tools, etc. The costs to compensate you for the damage to your vehicle and property fall squarely under the FTCA. Id.

Knowing that the FTCA applies the law of either where the accident occurred or where the injured party lives, does Illinois have a limit on the amount of recovery you can claim?

No. Illinois, unlike other states such as Tennessee, does not have limits on the total amount of compensatory damages an injured party can recover under the FTCA. Id.

Section II: Bringing Your Case to the Government’s Attention

What is a “Form 95”?

A Form 95 is a document that is required to be filled out by your attorneys with your help to make a claim against the federal government under the FTCA. This form requires you to provide the government with information pertinent to how the injury occurred. Note that if there were multiple parties who suffered injury besides yourself, there must be a separate Form 95 filled out for each person. The submission of the Form 95 is required, and is the “first” legal step the attorneys handling your case will take.

What is required for a sufficient Form 95?

The information required by a Form 95 is consistent with the evidence that is to be collected under the section “What Information Will Help Your Attorneys Build Your Case?” discussed above. It is critical for your attorney to fully complete the Form 95 and include all the damages sought for both personal injury and property damage. Your attorney will also determine the total amount claimed. It is critical to note that whatever amount your attorney lists under section 12(d) of the form is the maximum amount of relief that can be recovered by the injured party. There are rare instances where the courts have allowed the injured party to recover in excess of the initial amount listed, but those cases fall under a very nuanced discovery rule and are very uncommon. Thus, it is imperative that the evidence collection phase be administered promptly and that information be shared with your attorneys as soon as possible to ensure that an accurate amount is listed on the Form 95 document.28 U.S.C. § 2401 (b) (2018).

Why does my attorney need to fill out a Form 95?

It is critical that a Form 95 be filled out and sent to the correct government agency prior to any legal action being taken by you or your attorneys. If your attorney fails to submit a Form 95 and instead merely files a lawsuit, that lawsuit, regardless of the merit of the claim, will be dismissed because your attorney did not “exhaust the administrative remedies.” 28 U.S.C. § 2675 (a) (2018); see also McNeil v. United States, 508 U.S. 106, 112 (1993). That simply means the attorney failed to submit the required Form 95 before filing a lawsuit. Accordingly, completing a Form 95 and providing the government notice of your injury is imperative to an action arising out of the FTCA. If your attorneys fail to do so, their entire claim will likely be dismissed, leaving you without any compensation for your injuries and harm suffered.

How long do I have to fill out a Form 95?

You and your chosen attorney have two years from the day you suffered an injury to file a Form 95.

If you are still treating for the injuries you sustained as the two-year window is coming to a close, it is imperative that your attorney does not let continued treatment stop them from completing and filing a Form 95 prior to the expiration of that two-year period.

What information is required for a Form 95?

Your attorney, with your assistance, will complete the Form 95 and file it with the government agency that caused you injury. A Form 95 is split into fifteen different “sections”. Each section can be summarized as follows:

Sections one and two are the most analogous to a case caption or title. The federal agency that harmed you is to be filled in under section one. While section two requires the injured party and their representative to be listed.
Sections three through five require background information of the party bringing the claim, which includes things like date of birth, employment information, and marital status.
Sections six through eight seek information regarding the nature of the claim and how the injury occurred. Your attorney should be very thorough and accurate when providing the information under these sections.
Sections nine and ten seek information regarding any property damaged in the incident giving rise to the claim.
Section eleven seeks information regarding any potential witnesses who could testify regarding the incident or the injuries claimed. These could be witnesses to the accident, as well as any doctors or other professionals who provided medical care.
Section twelve (a-d) is critical. This is where your attorney will list the total amount you are seeking for your claim. The amount listed in this section will be the maximum amount recoverable for your claim. Therefore, it is imperative that your attorney fill this section out correctly and list the accurate amount of total damages sought.
Sections thirteen and fourteen require the attorney to verify that all the information provided is accurate.
Lastly, the final sections seek the injured party’s insurance information, if any.

After filling out a Form 95, how is it submitted?

The agency named in section one of the Form 95 is the agency that will receive the Form 95 from your attorney. It is crucial to confirm with your attorney the appropriate federal agency responsible for your injuries.

Section III: What Happens After I Submit a Form 95?

How long does the government have to respond?

The federal government has a maximum of six months after receipt of the Form 95 to respond before you have the right to file a lawsuit. 28 U.S.C. § 2675 (a) (2018). During those six months of there are three possible scenarios:

Most commonly, the federal government will not respond within the 6-month time period.
The federal government could outright deny it was at fault for the accident.
The federal government can attempt to settle the matter within the 6-month period.
- After six months, if the Government denies fault or fails to offer an acceptable settlement amount, you can file suit against the federal government in federal court to get the compensation you deserve for your injuries.

What happens if the government offers to settle your case?

If the government offers to settle your claim within the 6-month period after the filing of a Form 95, the injured person can either accept the offer, attempt to negotiate further, or outright deny the offer. If a settlement cannot be reached within that 6-month period, your attorney is then free to file suit on your behalf against the federal government in federal court.

What happens if the federal government denies liability?

If the federal government, in reviewing your claim, denies its liability for the injuries sustained, you can file suit against the federal government immediately and pursue litigation. Keep in mind that you only have six months after a denial of liability to file suit. If the matter is not filed, the government can dismiss the claim for your injuries. Look to the “What your attorneys will do” section for more information.

What happens if the federal government does not respond after 6 months?

If the government does not respond after 6 months of receipt of the Form 95, you are permitted, by law, to file a lawsuit against the federal government for the harm listed in the Form 95. Keep in mind that you only have six months after the initial six-month period to file suit. If the matter is not filed, you risk the dismissal of your claim. Look to the “What your attorneys will do” section for more information.

Section IV: What Happens After the Case Is Filed?

What your attorneys will do

Once a claim is filed with the appropriate federal agency, via a submitted Form 95, and is either denied outright or deemed denied through inaction, you, through your attorneys, may proceed to file a lawsuit in federal court. The suit must be brought either to the judicial district where you, who has now become the plaintiff, reside or where the alleged injury occurred. 28 U.S.C. § 1402(b).

What can you expect during the litigation of a FTCA claim?

Because the FTCA cases must be filed in federal court, the Federal Rules of Civil Procedure will apply. After your attorney files the initial complaint and the government files its formal answer, the discovery process will begin. Discovery can be a lengthy process where the attorneys for both sides exchange information about the case and take the depositions of relevant witnesses that may testify at trial. Once discovery is concluded, the matter will be set for trial. Unfortunately, a lengthy discovery process could result in a trial date years after the initial complaint was filed in federal court.

It is important to note that FTCA trials are bench trials. Claims under the FTCA do not allow for a jury to hear your case. A Federal Judge will solely make the final decision on the merits and value of your case. The inability to have the case heard by a jury results in some strategic considerations that your attorneys should consider. Seasoned attorneys, like those at Vito & Dollenmaier, will be very cognizant that arguments that may resonate emotionally with a jury may have little effect on a judge, while technical legal arguments or nuanced statutory interpretations will carry greater weight. Judges are generally less swayed by emotion and more focused on legal merit and factual clarity. However, as in all litigation, success hinges on the unique facts of the case, the reliability of key witnesses, and ultimately having competent counsel that can persuasively argue your case.

FTCA litigation presents unique procedural and strategic challenges distinct from typical negligence actions in state court. Mastery of the relevant rules, deadlines, and standards is essential to avoid procedural missteps that could compromise an otherwise meritorious claim. Thus, navigating a FTCA claim against the federal government requires attorneys who are familiar with the rules and procedures of FTCA claims and the processes and strategies involved with acquiring the maximum amount of compensation. The attorneys at Vito & Dollenmaier have decades of experience with FTCA claims and will ensure you get the most compensation possible for your claim.