son's negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope or such person's duties if such person is assigned to a foreign country or detailed for service with other than a Federal department, agency, or instrumentality or if the circumstances are such as are likely to preclude the remedies of third persons against the United States described in section 1346(b) of title 28, for such damage or injury.

"(g) In this section, 'head of the agency concerned' means

"(1) the Director of Central Intelligence, in the case of an employee of the Central Intelligence Agency;

"(2) the Secretary of Transportation, in the case of a member or employee of the Coast Guard when it is not operating as a service in the Navy;

"(3) the Board of Commissioners of the United States Soldiers' and Airmen's Home, in the case of an employee of the United States Solders' and Airmen's Home; and

"(4) the Secretary of Defense, in all other cases."

(Added Pub. L. 94-464, § 1(2), Oct. 8, 1976, 90 Stat. 1985, and amended Pub. L. 97-124, § 2, Dec. 29, 1981, 95 Stat. 1666, as amended Pub. L. 98-94, title IX, § 934 (a)–(c), Sept. 24, 1983, 97 Stat. 651, 652.)

TITLE 22.-FOREIGN RELATIONS AND INTERCOURSE 8817. Repealed. Pub. L. 96-465 title II, § 2205, Oct. 17, 1980, 94 Stat.

2159

(The section contained the Act of August 13, 1946, ch. 957, title X, §1091, as added July 12, 1976, Pub. L. 94-350, title I, § 119, 90 Stat. 827, which provided for malpractice protection for employees of the Department of State. Those provisions, as amended now appear as § 2702 of title 22 and are reprinted below.)

§ 2702. Malpractice protection

(a) Exclusiveness of designated remedies

The remedy

(1) against the United States provided by sections 1346 (b) and 2672 of title 28, or

(2) through proceedings for compensation or other benefits from the United States as provided by any other law, where the availability of such benefits precludes a remedy under such sections, for damages for personal injury, including death, allegedly arising from malpractice or negligence of a physician, dentist, nurse, pharmacist, or paramedical (including medical and dental assistants and technicians, nursing assistants, and therapists) or other supporting personnel of the Department of State in furnishing medical care or related services, including the conducting of clinical studies or investigations, while in the exercise of his or her duties in or for the Department of State or any other Federal department, agency, or instrumentality shall be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or his or her estate) whose act or omission gave rise to such claim.

(b) Defense of civil actions by United States; delivery of process; furnishing of copies of pleadings

The United States Government shall defend any civil action or proceeding brought in any court against any person referred to in subsection (a) of this section (or his or her estate) for any such damage or injury. Any such person against whom such civil action or proceeding

is brought shall deliver, within such time after date of service or knowledge of service as may be determined by the Attorney General, all process served upon him or her or an attested true copy thereof to whomever was designated by the Secretary to receive such papers. Such person shall promptly furnish copies of the pleading and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought to the Attorney General, and to the Secretary.

(c) Removal of actions; remand or dismissal; suspension of limitations

Upon a certification by the Attorney General that the defendant was acting within the scope of his or her employment in or for the Department of State or any other Federal department, agency, or instrumentality at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of title 28, and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (a) of this section is not available against the United States, the case shall be remanded to the State court except that where such remedy is precluded because of the availability of a remedy through proceedings for compensation or other benefits from the United States as provided by any other law, the case shall be dismissed, but in that event, the running of any limitation of time for commencing, or filing an application or claim in, such proceedings for compensation or other benefits shall be deemed to have been suspended during the pendency of the civil action or proceeding under this section.

(d) Compromise or settlement of claims

The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677 of title 28, and with the same effect.

(e) Inapplicability of section 2680(h) of title 28

For purposes of this section, the provisions of section 2680(h) of title 28, shall not apply to any tort enumerated therein arising out of negligence in the furnishing of medical care or related services, including the conducting of clinical studies or investigations.

(f) Holding harmless or providing for liability insurance

The Secretary may, to the extent he deems appropriate, hold harmless or provide liability insurance for any person to whom the immunity provisions of subsection (a) of this section apply, for damages for personal injury, including death, negligently caused by any such person while acting within the scope of his or her office or employment and as a result of the furnishing of medical care or related services, including the conducting of clinical studies or investigations, if such person is assigned to a foreign area or detailed for service with other than a Federal agency or institution, or if the circumstances are such as are likely to preclude the remedies of third persons against the United States provided by section 1346(b) and 2672 of title 28, for such damage or injury.

(g) Medical care or related service within scope of employment

For purposes of this section, any medical care or related service covered by this section and performed abroad by a covered person at

the direction or with the approval of the United States chief of mission or other principal representative of the United States in the area shall be deemed to be within the scope of employment of the individual performing the service.

(Aug. 1, 1956, ch. 841, title I, § 30, as added Oct. 17, 1980, Pub. L. 96465, title II, § 2201(a), 94 Stat. 2155, and renumbered Aug. 24, 1982, Pub. L. 97-241, title II, § 202(a), 96 Stat. 282.)

TITLE 32.-NATIONAL GUARD

§ 334. Repealed Pub. L. 97-124, § 3, Dec. 29, 1981, 95 Stat. 1666

(This section contained in the Act of October 8, 1976, Pub. L. 94464, § 2(b), 90 Stat. 1986 provided malpractice protection for National Guard medical personnel. Currently National Guard medical personnel are covered in section 1089 of title 10 U.S.C.)

TITLE 38.-VETERANS' BENEFITS

§ 4116. Defense of certain malpractice and negligence suits (a) The remedy

(1) against the United States provided by sections 1346 (b) and 2672 of title 28, or

(2) through proceedings for compensation or other benefits from the United States as provided by any other law, where the availability of such benefits precludes a remedy under section 1346(b) of 2672 of title 28,

for damages for personal injury, including death, allegedly arising from malpractice or negligence of a physician, dentist, podiatrist, optometrist, nurse, physician assistant, expanded-function dental auxiliary pharmacist, or paramedical (for example, medical and dental technicians, nursing assistants, and therapists) or other supporting personnel in furnishing medical care or treatment while in the exercise of such person's duties in or for the Department of Medicine and Surgery shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, podiatrist, optometrist, nurse, physician assistant, expandedfunction dental auxiliary pharmacist, or paramedical or other supporting personnel (or such person's estate) whose act or omission gave rise to such claim.

(b) The Attorney General shall defend any civil action or proceeding brought in any court against any person referred to in subsection (a) of this section (or such person's estate) for any such damage or injury. Any such person against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon such person or an attested true copy thereof to such person's immediate superior or to whomever was designated by the Administrator to receive such papers and such person shall promptly furnish copies of the pleading and process therein to the U.S. attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the Administrator.

(c) Upon a certification by the Attorney General that the defendant was acting in the scope of such person's employment in or for the Department of Medicine and Surgery at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of title 28 and all references thereto. After removal the United States shall have available all defenses

to which it would have been entitled if the action had originally been commenced against the United States. Should a U.S. district court determine on a hearing on a motion to remand held before a trial on the merits that the employee whose act or omission gave rise to the suit was not acting within the scope of such person's office or employment, the case shall be remanded to the State court.

(d) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677 of title 28, and with the same effect.

(e) The Administrator may, to the extent the Administrator deems appropriate, hold harmless or provide liability insurance for any person to whom the immunity provisions of this section apply (as described in subsection (a) of this section), for damage for personal injury or death, or for property damage, negligently caused by such person while furnishing medical care or treatment (including the conduct of clinical studies or investigations) in the exercise of such person's duties in or for the Department of Medicine and Surgery, if such person is assigned to a foreign country, detailed to State or political division thereof, or is acting under any other circumstances which would preclude the remedies of an injured third person against the United States, provided by sections 1346(b) and 2672 of title 28, for such damage or injury.

(Added Pub. L. 89-311, § 6(a), Oct. 31, 1965, 79 Stat. 1156, and amended Pub. L. 89-506, § 5(b), July 18, 1966, 80 Stat. 307; Pub. L. 93-82, title II, § 207, Aug. 2, 1973, 87 Stat. 193; Pub. L. 94-581, title I, § 110(11), title II, §§ 209(a)(7), 210(c)(8), Oct. 21, 1976, 90 Stat. 2849, 2861, 2864.)

TITLE 42.-THE PUBLIC HEALTH AND WELFARE

CHAPTER 6A-PUBLIC HEALTH SERVICES

SUBCHAPTER I-ADMINISTRATION

§ 233. Civil actions or proceedings against commissioned officers or employees-Exclusiveness of remedy

(a) Exclusiveness of remedy

The remedy against the United States provided by sections 1346(b) and 2672 of title 28, or by alternative benefits provided by the United States where the availability of such benefits precludes a remedy under section 1346(b) of title 28, for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the officer or employee (or his estate) whose act or omission gave rise to the claim. (b) Attorney General to defend action or proceeding; delivery of process to designated official; furnishing of copies of the pleading and process to U.S. attorney, Attorney, and Secretary The Attorney General shall defend any civil action or proceeding brought in any court against any person referred to in subsection (a) of this section (or his estate) for any such damage or injury. Any such person against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to

whomever was designated by the Secretary to receive such papers and such person shall promptly furnish copies of the pleading and process therein to the U.S. attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the Secretary.

(c) Removal to U.S. district court; procedure; proceeding upon removal deemed a tort action against United 3States; hearing on motion to remand to determine availability of remedy against United States; remand to State court or dismissal

Upon a certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of title 28 and all references thereto. Should a U.S. district court determine on a hearing on a motion to remand held before a trial on the merit that the case so removed is one in which a remedy by suit within the meaning of subsection (a) of this section is not available against the United States, the case shall be remanded to the State Court: Provided, That where such a remedy is precluded because of the availability of a remedy through proceedings for compensation or other benefits from the United States as provided by any other law, the case shall be dismissed, but in the event the running of any limitation of time for commencing, or filing an application or claim in, such proceedings for compensation or other benefits shall be deemed to have been suspended during the pendency of the civil action or proceeding under this section.

(d) Compromise or settlement of claim by Attorney General

The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677 of title 28 and with the same effect.

(e) Assault or battery

For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to assault or battery arising out of negligence in the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigations.

(f) Authority of Secretary or designee to hold harmless or provide liability insurance for assigned or detailed employees

The Secretary or his designee may, to the extent that he deems appropriate, hold harmless or provide liability insurance for any officer or employee of the Public Health Service for damage for personal injury, including death, negligently caused by such officer or employee while acting within the scope of his office or employment and as a result of the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigations, if such employee is assigned to a foreign country or detailed to a State or political subdivision thereof or to a nonprofit institution, and if the circumstances are such as are likely to preclude the remedies of third persons against the United States described in section 2679(b) of title 28, for such damage or injury.

(July 1, 1944, c. 373, Title II, § 224, formerly § 223, as added Dec. 31, 1970, Pub. L. 91-623, § 4, 84 Stat. 1870, and renumbered Nov. 18, 1971, Pub. L. 92-157, Title III, § 301(c), 85 Stat. 463.)