10 U.S.C. § 1089

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 1089 - Defense of certain suits arising out of medical malpractice

(a) The remedy against the United States provided by sections 1346(b) and 2672 of title 28 for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) of the armed forces, the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32, the Department of Defense, the Armed Forces Retirement Home, or the Central Intelligence Agency in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of his duties or employment therein or therefor shall hereafter 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 the estate of such person) whose act or omission gave rise to such action or proceeding. This subsection shall also apply to such a physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) serving under a personal services contract entered into under section 1091 of this title or a subcontract at any tier under such a contract that is authorized in accordance with the requirements of such section 1091.

(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 the estate of such person) for any such 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 head of the agency concerned 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 action or proceeding is brought, to the Attorney General and to the head of the agency concerned.

(c) Upon a certification by the Attorney General that any person described in subsection (a) was acting in the scope of such person's duties or 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 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.

(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) For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations).

(f)

(1) The head of the agency concerned may, to the extent that the head of the agency concerned considers appropriate, hold harmless or provide liability insurance for any person described in subsection (a) for damages for personal injury, including death, caused by such person'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 of 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.

(2) With respect to the Secretary of Defense and the Armed Forces Retirement Home Board, the authority provided by paragraph (1) also includes the authority to provide for reasonable attorney's fees for persons described in subsection (a), as determined necessary pursuant to regulations prescribed by the head of the agency concerned.

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

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

(2) the Secretary of Homeland Security, 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 Chief Operating Officer of the Armed Forces Retirement Home, in the case of an employee of the Armed Forces Retirement Home; and

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

10 U.S.C. § 1089

Added Pub. L. 94-464, §1(a), Oct. 8, 1976, 90 Stat. 1985; amended Pub. L. 97-124, §2, Dec. 29, 1981, 95 Stat. 1666; Pub. L. 98-94, title IX, §934(a)-(c), Sept. 24, 1983, 97 Stat. 651, 652; Pub. L. 100-180, div. A, title XII, §1231(18)(A), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 101-510, div. A, title XV, §1533(a)(1), Nov. 5, 1990, 104 Stat. 1733; Pub. L. 105-85, div. A, title VII, §736(b), Nov. 18, 1997, 111 Stat. 1814; Pub. L. 107-296, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 110-181, div. A, title IX, §931(b)(3), Jan. 28, 2008, 122 Stat. 285; Pub. L. 112-81, div. A, title V, §567(b)(2)(A), Dec. 31, 2011, 125 Stat. 1425; Pub. L. 112-239, div. A, title VII, §713(a), Jan. 2, 2013, 126 Stat. 1803.

EDITORIAL NOTES

AMENDMENTS2013-Subsec. (a). Pub. L. 112-239 substituted "to such a physician, dentist, nurse, pharmacist, or paramedical" for "if the physician, dentist, nurse, pharmacist, or paramedical", struck out "involved is" before "serving under", and inserted "or a subcontract at any tier under such a contract that is authorized in accordance with the requirements of such section 1091" after "section 1091 of this title". 2011-Subsec. (g)(3). Pub. L. 112-81 substituted "Chief Operating Officer of the Armed Forces Retirement Home" for "Armed Forces Retirement Home Board".2008-Subsec. (g)(1). Pub. L. 110-181 substituted "Director of the Central Intelligence Agency" for "Director of Central Intelligence".2002-Subsec. (g)(2). Pub. L. 107-296 substituted "of Homeland Security" for "of Transportation".1997-Subsec. (a). Pub. L. 105-85, §736(b)(1), inserted at end "This subsection shall also apply if the physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) involved is serving under a personal services contract entered into under section 1091 of this title." Subsec. (f). Pub. L. 105-85, §736(b)(2), designated existing provisions as par. (1) and added par. (2). 1990-Subsec. (a). Pub. L. 101-510, §1533(a)(1)(A), substituted "Armed Forces Retirement Home" for "United States Soldiers' and Airmen's Home".Subsec. (g)(3). Pub. L. 101-510, §1533(a)(1)(B), added par. (3) and struck out former par. (3) which read as follows: "the Board of Commissioners of the United States Soldiers' and Airmen's home, in the case of an employee of the United States Soldiers' and Airmen's Home; and".1987-Subsec. (g). Pub. L. 100-180 inserted "the term" after "In this section,". 1983-Subsec. (a). Pub. L. 98-94, §934(a), inserted "the United States Soldiers' and Airmen's Home,".Subsec. (f). Pub. L. 98-94, §934(b), substituted "may, to the extent that the head of the agency concerned considers" for "or his designee may, to the extent that he or his designee deems".Subsec. (g)(3), (4). Pub. L. 98-94, §934(c)(3), added par. (3) and redesignated former par. (3) as (4).1981-Subsec. (a). Pub. L. 97-124 inserted "the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32," after "armed forces,".

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107-296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107-296, set out as a note under section 101 of this title.

EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-510 effective one year after Nov. 5, 1990, see section 1541 of Pub. L. 101-510, formerly set out as an Effective Date note under section 401 of Title 24, Hospitals and Asylums.

EFFECTIVE DATE OF 1983 AMENDMENT Pub. L. 98-94, title IX, §934(d), Sept. 24, 1983, 97 Stat. 652, provided that: "The amendments made by this section [amending this section] shall apply only to claims accruing on or after the date of the enactment of this Act [Sept. 24, 1983]."

EFFECTIVE DATE OF 1981 AMENDMENT Pub. L. 97-124, §4, Dec. 29, 1981, 95 Stat. 1666, provided that: "The amendments made by this Act [amending this section and section 2671 of Title 28, Judiciary and Judicial Procedure] and the repeal made by section 3 of this Act [repealing section 334 of Title 32, National Guard] shall apply only with respect to claims arising on or after the date of enactment of this Act [Dec. 29, 1981]."

EFFECTIVE DATEPub. L. 94-464, §4, Oct. 8, 1976, 90 Stat. 1989, provided that: "This Act [enacting this section, section 334 of Title 32, National Guard, section 2458a of Title 42, The Public Health and Welfare, and provisions set out as notes under this section and section 334 of Title 32] shall become effective on the date of its enactment [Oct. 8, 1976] and shall apply only to those claims accruing on or after such date of enactment."

CONGRESSIONAL FINDINGS Pub. L. 94-464, §2(a), Oct. 8, 1976, 90 Stat. 1986, provided that: "The Congress finds-"(1) that the Army National Guard and the Air National Guard are critical components of the defense posture of the United States;"(2) that a medical capability is essential to the performance of the mission of the National Guard when in Federal service;"(3) that the current medical malpractice crisis poses a serious threat to the availability of sufficient medical personnel for the National Guard; and"(4) that in order to insure that such medical personnel will continue to be available to the National Guard, it is necessary for the Federal Government to assume responsibility for the payment of malpractice claims made against such personnel arising out of actions or omissions on the part of such personnel while they are performing certain training exercises."

includes: "includes" means "includes but is not limited to"; and
Air National Guard: The term "Air National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive, that-(A) is an air force;(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;(C) is organized, armed, and equipped wholly or partly at Federal expense; and(D) is federally recognized.
Army National Guard: The term "Army National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive, that-(A) is a land force;(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;(C) is organized, armed, and equipped wholly or partly at Federal expense; and(D) is federally recognized.
National Guard: The term "National Guard" means the Army National Guard and the Air National Guard.
armed forces: The term "armed forces" means the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard.
health care: The term "health care" includes mental health care.
officer: The term "officer" means a commissioned or warrant officer.