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Professional Liability for Government Medical Care

SEC. 1 GENERAL

Medical, paramedical, scientific, and administrative personnel of the Public Health Service share a multitude of interests with those of their professional colleagues engaged in patient care and medical research activities outside the Government. The PHS professional employee frequently is a member of his State medical or scientific society, and may be a part-time consultant, research investigator or teacher in a university or teaching hospital. While his professional objectives are oriented toward Government beneficiaries and programs, his professional achievements are measured and evaluated by the entire medical and scientific community.

The identity of interests between Government and non-Government medical personnel is particularly pronounced in what may be termed generally the law of medical malpractice,' since the applicable legal standards, as enunciated by the courts, do not differentiate between Government and non-Government medical care. From the standpoint of his liability for medical negligence, therefore, neither the PHS professional employee nor his civilian counterpart is an island unto himself. The pertinent case law and judicial standards are equally applicable to both.

To some extent, however, the PHS professional medical employee is in a more advantageous position as regards his professional liability than is his colleague in private practice. The very fact that he is employed by the Government makes it more than likely he will not even be named as a party defendant in any action brought, except perhaps in those instances in which the plaintiff cannot bring

1The term "malpractice" may be defined broadly as the failure on the part of a physician, dentist, pharmacist, nurse, or other person of professional skill and learning, to perform in a proper manner the legal duties incumbent upon him in carrying out his professional responsibilities to another, resulting in a legally cognizable harm to the latter.

suit against the Government, for one reason or another, as discussed in Part A.2(c). Even when sued personally, the PHS employee can generally rely upon capable legal representation by the Department of Justice at no cost to himself. As a result, he not only avoids the expense of litigation, but has at his disposal all the legal and investigative resources of the Government, a decided advantage in any lawsuit. Considering the vast number of persons who receive treatment in PHS facilities each year, relatively few lawsuits have been filed as a direct outcome of these activities, averaging approximately 12 per year for the past several years. There are, however, indicators pointing to a general increase in malpractice litigation throughout the country, and it may be expected that this trend will result in a proportionate increase in malpractice suits against the United States. Such suits are a constant threat to everyone in the medical field, emphasizing the need for Government and non-Government medical personnel alike to fully acquaint themselves with the necessary steps for preventing malpractice claims from arising.

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SEC. 2 THE FEDERAL TORT CLAIMS ACT

(a) Historical Background

Prior to 1946, the United States was not amenable to suit for the tortious acts of its employees or agents. The concept of governmental immunity from suit originated in the ancient common law doctrine that the King could do no wrong," and therefore could not be sued in his own courts for the torts of his agents or employees. Because suit could not be brought against the United States, aggrieved claimants frequently sought recompense through the medium

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2 Circumstances under which free Government legal counsel will or will not be provided are described on pages 16 and 17.

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The number of PHS malpractice suits instituted during each of the past 7 fiscal years is as follows: 1960-8; 1961-10; 1962-10; 1963-12; 1964-13; 1965-11; 1966-9.

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* Apparently, the increase in malpractice litigation is not limited to the United States. Two of the large medical defense organizations in Great Britain report that claims are on the rise in that country also. Brit. Med. J., 2: 835 (Oct. 9, 1965).

5 Pollock and Maitland: History of English Law, 515–518 (2d ed., 1898).

A "tort" is a legal wrong committed upon the person or property of another, independent of contract. A tort is committed, and the actor becomes liable therefor in damages, when he commits an act, or omits to act, in violation of a legal duty to another, causing harm to such person.

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