Traumatic Brain Injury Claims Against the Government: What You Need to Know

Traditionally, federal, state, and local governments had immunity from lawsuits. This meant that individuals could not sue the government for personal injury, even when the government was negligent.

Federal TBI Lawsuits

In 1946, the Federal Tort Claims Act (FTCA) became law, providing a limited waiver of immunity for these claims. The FTCA provides that the U.S. government is responsible for damages and injuries caused by federal employees in specific circumstances and in the same way that a private individual might be held legally responsible.

The FTCA provides that federal courts are the only jurisdiction to file claims “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

The procedures and deadlines for suing the federal government are set forth in the U.S. Code. An injured party must first file an administrative claim, which provides notice of the nature and basis of the claim, a description of the injury, and demands payment for a “sum certain.” Tort claims against the U.S. must first be presented in writing to the appropriate federal agency within two years of accrual of the cause of action, and then a lawsuit must be filed in court within six months following denial by that agency. Failure to file an administrative claim will result in the lawsuit being dismissed. The government must deny the claim in writing before a lawsuit by or on behalf of an injured person can be filed. However, if the government does not act on the claim within six months, the law provides that the claim will be considered denied, and the injured party can then file a lawsuit.

State and Local TBI Lawsuits

Since 1946, many states have passed similar laws that follow the FTCA and waive immunity to allow specific types of claims for personal injury to be brought against the state or local governments. The statute of limitations for personal injury claims against state and local government defendants is typically the same as for claims against other defendants.

However, state statutes place restrictions on claims against the government. For example, these laws limit the amount of money that an injured person can receive in a claim against the government (a damages cap). In Pennsylvania, for example, there is a $250,000 limit on personal injury damages recoverable in a lawsuit against the Commonwealth or its departments and a $500,000 limit on damages in a case against cities, counties, and local agencies or parties. Pennsylvania law also limits the types of injury claims that can be brought, such as motor vehicle accidents caused by Commonwealth employees, medical malpractice by Commonwealth employees, and hazards in buildings or on Commonwealth-controlled highways and sidewalks.

Each state has its own rules for these claims, and in these situations, you should consult experienced counsel.

In addition, some states that waive immunity require that the injured person or their counsel file a tort claims notice form. In these states, an individual must notify the government in writing within a brief period after the incident and injury. A tort claims notice requires specific information, including the name of the injured party, the location, a description of the incident and the injuries, and more. As mentioned, New Jersey requires notice within 90 days from the date of occurrence or accident, and the failure to provide complete information or the failure to deliver the notice to the correct party can have consequences, including barring the claim. These notice requirements are yet another deadline that must be met, and failure to promptly file the notice can lead to the dismissal of the lawsuit.

The bottom line? There are unique deadlines and filing requirements regarding every claim. These laws set traps for the unwary. For more information and an evaluation of the facts and circumstances of a case, you should contact an experienced attorney as soon as possible.

Source: 28 U.S. Code § 1346 and 42 Pa.C.S.A. § 8528 and § 8553; 28 U.S.C.§ 2401(b) and 28 U.S.C. § 2675(a)

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