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ACA American Citizens Abroad 5 rue Liotard, CH-1202 Geneva, Switzerland Fax: (+41-22) 340 0233 FEDERAL TORT CLAIMS AND THE OVERSEAS AMERICAN RECOMMENDED CHANGES TO THE U.S. FEDERAL TORT CLAIMS ACT AS IT APPLIES TO OVERSEAS AMERICANS FEDERAL TORT CLAIMS AND THE OVERSEAS AMERICAN RECOMMENDED CHANGES TO THE U.S. FEDERAL TORT CLAIMS ACT AS IT APPLIES TO U.S. CITIZENS LIVING OUTSIDE THE UNITED STATES This paper discusses current Federal Tort Claims legislation and its impact on the lives of U.S. citizens living and working abroad. 1. Introduction: The Federal Employees Liability Reform and Tort Compensation Act of 1988 addresses the rights of U.S. citizens to sue the U.S. Government for tort claims, and limits the relief available to persons injured by Government employees acting within the scope of their employment. In such cases, the Act provides that "the remedy against the United States under the Federal Tort Claims Act (FTCA) is exclusive of any other civil action or proceeding for money damages." In certain cases, the FTCA allows a person alleging injury by a Government employee, acting within the scope of his/her employment, to seek tort damages against the Government. There is an exception, however, which bars such recovery for injuries sustained outside the country.

2. The Supreme Court Rules Against An Overseas American: Mr. Marcus Smith, a U.S. Army Sergeant stationed in Italy, claimed that Dr. William Marshall, who was serving on the medical staff of the U.S. Army Hospital in Vicenza, Italy, was negligent during the birth of his son, Dominique in 1982. This child was born with massive brain damage. The suit was brought in the United States District Court for the Central District of California in 1987.

The Government intervened, in a suit entitled United States, Et Al., Petitioners V. Marcus S. Smith Et Al, and sought to have itself substituted for Dr. Marshall as the defendant under the relevant provisions of the Gonzalez Act, 10 U.S.C. Þ1089. This Act provides that in suits against military medical personnel for torts committed within the scope of their employment, the Government is to be substituted as the defendant and the suit is to proceed against the Government under the FTCA. The Catch 22 here is that once the FTCA is invoked, the prohibition of claims for injuries committed outside the country becomes operative.

Mr. Marcus, the FTCA language not withstanding, tried nevertheless to seek damages from the particular Government employee who caused the injury. The Court by an 8-1 majority held "that the Liability Reform Act bars this alternative mode of recovery."

3. But There was Dissent: Justice Stevens, in dissent, said that the majority ruling is not consistent with the intent of Congress. According to Mr. Stevens, "For claims not covered by the FTCA, such as for those claims arising in foreign countries, the Gonzales Act authorized medical personnel to be insured or indemnified by the Federal Government. By that arrangement, Congress protected Government doctors from personal liability for services performed in the course of their overseas duties, and at the same time, preserved the common law remedy for American victims of medical malpractice."

Mr. Stevens concludes that "the question is whether the Liability Reform Act withdrew the remedy for malpractice claims arising outside of the United States that had been expressly preserved by subsection (f) of the Gonzalez Act.

4. The Situation Today: The net result of this Supreme Court ruling is that U.S. citizens living overseas can no longer expect to win any tort suits against the U.S. Government for negligent acts committed overseas by doctors or other Government employees.

5. What Could and Should be Done?: ACA requests that legislation be introduced by Members of this Subcommittee that would amend the Liability Reform Act of 1988 in such a way as to permit U.S. citizens living abroad to regain the common law right to seek redress for torts committed overseas by individuals working for the U.S. Government overseas.

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ACA
Geneva, Switzerland
31 January 2001