§7316 — Title 38 Veterans' Benefits | U.S. Code

Summary

The United States will defend certain health care workers who are sued for negligence or medical mistakes while working for the Administration. Health care workers covered include doctors, dentists, nurses, physician assistants, pharmacists, certain dental helpers, paramedical staff (like techs, nursing aides, and therapists), and other support personnel. If a suit falls under federal remedies, the Attorney General must defend the worker (or the worker’s estate) in court. The worker must quickly send any legal papers to their supervisor or the person the Secretary names, and copies must go to the U.S. attorney, the Attorney General, and the Secretary. The Attorney General can move state cases to federal court if the worker was acting within their job, and can settle claims under federal rules. The Secretary can provide protection or liability insurance for these workers in some situations. A usual federal exception in 28 U.S.C. 2680(h) does not block claims for negligent medical care by these workers.

Title 38, §7316

Veterans' Benefits — Source: USLM XML via OLRC

(a)(1)The remedy—

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

(B)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) or 2672 of title 28,

(2)For purposes of paragraph (1), the term “health care employee of the Administration” means a physician, dentist, podiatrist, chiropractor, optometrist, nurse, physician assistant, expanded-function dental auxiliary, pharmacist, or paramedical (such as medical and dental technicians, nursing assistants, and therapists), or other supporting personnel.

(b)The Attorney General shall defend any civil action or proceeding brought in any court against any person referred to in subsection (a) (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 Secretary to receive such papers and 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)Upon a certification by the Attorney General that the defendant was acting in the scope of such person’s employment in or for the Administration 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 United States 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 Secretary may, to the extent the Secretary considers appropriate, hold harmless or provide liability insurance for any person to whom the immunity provisions of this section apply (as described in subsection (a)), 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 Administration, 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 section 1346(b) and 2672 of title 28, for such damage or injury.

(f)The exception provided in section 2680(h) of title 28 shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment (including medical care or treatment furnished in the course of a clinical study or investigation) while in the exercise of such person’s duties in or for the Administration.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2003—Subsec. (a)(1). Pub. L. 108–170, § 302(e)(1), substituted “health” for “medical” in three places in concluding provisions. Subsec. (a)(2). Pub. L. 108–170, § 302(e)(2), substituted “health” for “medical” the first place it appeared and inserted “chiropractor,” after “podiatrist,”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2003 Amendment Pub. L. 108–170, title III, § 302(h), Dec. 6, 2003, 117 Stat. 2058, provided that: “The

Amendments

made by this section [amending this section and sections 7401 to 7404, 7409, and 7421 of this title] shall take effect at the end of the 180–day period beginning on the date of the enactment of this Act [Dec. 6, 2003].”

§7316 Malpractice and Negligence Suits: Defense by United States

Summary

Title 38, §7316

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Amendments

Citations & Metadata