Title 10 — Armed Forces
Part II · Chapter 55 — Medical and Dental Care
§ 1089. Defense of certain suits arising out of medical malpractice
Statutory text
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.
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.
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.
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.
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).
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.
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.
In this section, the term “head of the agency concerned” means—
the Director of the Central Intelligence Agency, in the case of an employee of the Central Intelligence Agency;
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;
the Chief Operating Officer of the Armed Forces Retirement Home, in the case of an employee of the Armed Forces Retirement Home; and
the Secretary of Defense, in all other cases.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Pub. L. 94–464 § 1(a) · 90 Stat. 1985
Enacted · 10 U.S.C. § 1089
Added Pub. L. 94–464, § 1(a), Oct. 8, 1976, 90 Stat. 1985
Source evidence
Code source credit
Added Pub. L. 94–464, § 1(a), Oct. 8, 1976, 90 Stat. 1985Enacted provision · exact public law section
(1) that the Army National Guard and the Air National Guard are critical components of the defense posture of the United States;,Pub. L. 97–124 § 2 · 95 Stat. 1666
Inserted · 10 U.S.C. § 1089(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,”
Source evidence
Code amendment note
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,”.Enacted provision · exact public law section
Sec. 2. Section 1089(a) of title 10, United States Code, is amended by inserting “the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32,” after “armed forces,”.Department of Defense Authorization Act, 1984
Pub. L. 98–94 § 934(a) · 97 Stat. 614
Inserted · 10 U.S.C. § 1089(a)
Pub. L. 98–94, § 934(a), inserted “the United States Soldiers’ and Airmen’s Home,”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 98–94, § 934(a), inserted “the United States Soldiers’ and Airmen’s Home,”.Department of Defense Authorization Act, 1984
Pub. L. 98–94 § 934(b) · 97 Stat. 614
Substituted · 10 U.S.C. § 1089(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”
Source evidence
Code amendment note
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”.Department of Defense Authorization Act, 1984
Pub. L. 98–94 § 934(c)(3) · 97 Stat. 614
Added · 10 U.S.C. § 1089(g)(3); 10 U.S.C. § 1089(g)(4)
Pub. L. 98–94, § 934(c)(3), added par. (3)
Redesignated · 10 U.S.C. § 1089(g)(3); 10 U.S.C. § 1089(g)(4)
Pub. L. 98–94, § 934(c)(3), redesignated former par. (3) as (4)
Source evidence
Code amendment note
Subsec. (g)(3), (4). Pub. L. 98–94, § 934(c)(3), added par. (3) and redesignated former par. (3) as (4).National Defense Authorization Act for Fiscal Years 1988 and 1989
Pub. L. 100–180 div. A title XII § 1231(18)(A) · 101 Stat. 1019
Inserted · 10 U.S.C. § 1089(g)
Pub. L. 100–180 inserted “the term” after “In this section,”
Source evidence
Code amendment note
Subsec. (g). Pub. L. 100–180 inserted “the term” after “In this section,”.Enacted provision · exact public law section
(A) Sections 1089(g), 2002(b), 2141(c), 2143(c), and 2145(b) are amended by inserting “the term” after “In this section,”.Armed Forces Retirement Home Act of 1991
Pub. L. 101–510 § 1533(a)(1)(A) · 104 Stat. 1485
Substituted · 10 U.S.C. § 1089(a)
Pub. L. 101–510, § 1533(a)(1)(A), substituted “Armed Forces Retirement Home” for “United States Soldiers’ and Airmen’s Home”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 101–510, § 1533(a)(1)(A), substituted “Armed Forces Retirement Home” for “United States Soldiers’ and Airmen’s Home”.Enacted provision · exact public law section
(A) in subsection (a) by striking out “United States Soldiers’ and Airmen’s Home” and inserting in lieu thereof “Armed Forces Retirement Home”; andArmed Forces Retirement Home Act of 1991
Pub. L. 101–510 § 1533(a)(1)(B) · 104 Stat. 1485
Added · 10 U.S.C. § 1089(g)(3)
Pub. L. 101–510, § 1533(a)(1)(B), added par. (3)
Struck · 10 U.S.C. § 1089(g)(3)
Pub. L. 101–510, § 1533(a)(1)(B), 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”
Source evidence
Code amendment note
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”.Enacted provision · exact public law section
(B) in subsection (g), by striking out paragraph (3) and inserting in lieu thereof the following: “(3) the Armed Forces Retirement Home Board, in the case of an employee of the Armed Forces Retirement Home; and”.National Defense Authorization Act for Fiscal Year 1998
Pub. L. 105–85 § 736(b)(1) · 111 Stat. 1629
Inserted · 10 U.S.C. § 1089(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.”
Source evidence
Code amendment note
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.”Enacted provision · exact public law section
(1) in subsection (a), by adding at the end the following Applicability. new sentence: “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.”; andNational Defense Authorization Act for Fiscal Year 1998
Pub. L. 105–85 § 736(b)(2) · 111 Stat. 1629
Amended · 10 U.S.C. § 1089(f)
Pub. L. 105–85, § 736(b)(2), designated existing provisions as par. (1)
Added · 10 U.S.C. § 1089(f)
Pub. L. 105–85, § 736(b)(2), added par. (2)
Source evidence
Code amendment note
Subsec. (f). Pub. L. 105–85, § 736(b)(2), designated existing provisions as par. (1) and added par. (2).Enacted provision · exact public law section
(2) in subsection (f)— (A) by inserting “(1)” after “(f)”; and (B) by adding at the end the following new paragraph: “(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.”.Homeland Security Act of 2002
Pub. L. 107–296 title XVII § 1704(b)(1) · 116 Stat. 2135
Substituted · 10 U.S.C. § 1089(g)(2)
Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”
Source evidence
Code amendment note
Subsec. (g)(2). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.Enacted provision · exact public law section
(1) Title 10, United States Code, is amended in sections 101(9), 130b(a), 130b(c)(4), 130c(h)(1), 379, 513(d), 575(b)(2), 580(e)(6), 580a(e), 651(a), 671(c)(2), 708(a), 716(a), 717, 806(d)(2), 815(e), 888, 946(c)(1), 973(d), 978(d), 983(b)(1), 985(a), 1033(b)(1), 1033(d), 1034, 1037(c), 1044d(f), 1058(c), 1059(a), 1059(k)(1), 1073(a), 1074(c)(1), 1089(g)(2), 1090, 1091(a), 1124, 1143, 1143a(h), 1144, 1145(e), 1148, 1149, 1150(c), 1152(a), 1152(d)(1), 1153, 1175, 1212(a), 1408(h)(2), 1408(h)(8), 1463(a)(2), 1482a(b), 1510, 1552(a)(1), 1565(f), 1588(f)(4), 1589, 2002(a), 2302(1), 2306b(b), 2323(j)(2), 2376(2), 2396(b)(1), 2410a(a), 2572(a), 2575(a), 2578, 2601(b)(4), 2634(e), 2635(a), 2734(g), 2734a, 2775, 2830(b)(2), 2835, 2836, 4745(a), 5013a(a), 7361(b), 10143(b)(2), 10146(a), 10147(a), 10149(b), 10150, 10202(b), 10203(d), 10205(b), 10301(b), 12103(b), 12103(d), 12304, 12311(c), 12522(c), 12527(a)(2), 12731(b), 12731a(e), 16131(a), 16136(a), 16301(g), and 18501 by striking “of Transportation” each place it appears and inserting “of Homeland Security”.Effective date note
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.National Defense Authorization Act for Fiscal Year 2008
Pub. L. 110–181 div. A title IX § 931(b)(3) · 122 Stat. 3
Substituted · 10 U.S.C. § 1089(g)(1)
Pub. L. 110–181 substituted “Director of the Central Intelligence Agency” for “Director of Central Intelligence”
Source evidence
Code amendment note
Subsec. (g)(1). Pub. L. 110–181 substituted “Director of the Central Intelligence Agency” for “Director of Central Intelligence”.Enacted provision · exact public law section
(3) Section 1089(g).National Defense Authorization Act for Fiscal Year 2012
Pub. L. 112–81 div. A title V § 567(b)(2)(A) · 125 Stat. 1298
Substituted · 10 U.S.C. § 1089(g)(3)
Pub. L. 112–81 substituted “Chief Operating Officer of the Armed Forces Retirement Home” for “Armed Forces Retirement Home Board”
Source evidence
Code amendment note
Subsec. (g)(3). Pub. L. 112–81 substituted “Chief Operating Officer of the Armed Forces Retirement Home” for “Armed Forces Retirement Home Board”.Enacted provision · exact public law section
(A) Defense of certain suits.— Section 1089(g)(3) of title 10, United States Code, is amended by striking “Armed Forces Retirement Home Board” and inserting “Chief Operating Officer of the Armed Forces Retirement Home”.National Defense Authorization Act for Fiscal Year 2013
Pub. L. 112–239 div. A title VII § 713(a) · 126 Stat. 1632
Substituted · 10 U.S.C. § 1089(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 · 10 U.S.C. § 1089(a)
Pub. L. 112–239 struck out “involved is” before “serving under”
Inserted · 10 U.S.C. § 1089(a)
Pub. L. 112–239 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”
Source evidence
Code amendment note
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”.Enacted provision · exact public law section
(a) Applicability of Federal Tort Claims Act to Subcontractors.— Section 1089(a) of title 10, United States Code, is amended in the last sentence— (1) by striking “if the physician, dentist, nurse, pharmacist, or paramedical” and inserting “to such a physician, dentist, nurse, pharmacist, or paramedical”; (2) by striking “involved is”; and (3) by inserting before the period at the end the following: “or a subcontract at any tier under such a contract that is authorized in accordance with the requirements of such section 1091”.
15 of 19 references resolved to an enrolled provision · 4 partial
Editorial Notes
Amendments1981–2013 · 9 rounds
2013
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 , 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), , 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 [].”
Effective Date of 1981 Amendment
Pub. L. 97–124, § 4, , 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 [].”
Effective Date
Pub. L. 94–464, § 4, , 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 [] and shall apply only to those claims accruing on or after such date of enactment.”
Congressional Findings
Pub. L. 94–464, § 2(a), , 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.”
Credits
1976–2013 · 10 acts
- 1976Added Pub. L. 94–464, § 1(a), , 90 Stat. 1985
- 1981amended Pub. L. 97–124, § 2, , 95 Stat. 1666
- 1983Pub. L. 98–94, title IX, § 934(a)–(c), , 97 Stat. 651, 652
- 1987Pub. L. 100–180, div. A, title XII, § 1231(18)(A), , 101 Stat. 1161
- 1990Pub. L. 101–510, div. A, title XV, § 1533(a)(1), , 104 Stat. 1733
- 1997Pub. L. 105–85, div. A, title VII, § 736(b), , 111 Stat. 1814
- 2002Pub. L. 107–296, title XVII, § 1704(b)(1), , 116 Stat. 2314
- 2008Pub. L. 110–181, div. A, title IX, § 931(b)(3), , 122 Stat. 285
- 2011Pub. L. 112–81, div. A, title V, § 567(b)(2)(A), , 125 Stat. 1425
- 2013Pub. L. 112–239, div. A, title VII, § 713(a), , 126 Stat. 1803.
Show as published
(Added Pub. L. 94–464, § 1(a), , 90 Stat. 1985; amended Pub. L. 97–124, § 2, , 95 Stat. 1666; Pub. L. 98–94, title IX, § 934(a)–(c), , 97 Stat. 651, 652; Pub. L. 100–180, div. A, title XII, § 1231(18)(A), , 101 Stat. 1161; Pub. L. 101–510, div. A, title XV, § 1533(a)(1), , 104 Stat. 1733; Pub. L. 105–85, div. A, title VII, § 736(b), , 111 Stat. 1814; Pub. L. 107–296, title XVII, § 1704(b)(1), , 116 Stat. 2314; Pub. L. 110–181, div. A, title IX, § 931(b)(3), , 122 Stat. 285; Pub. L. 112–81, div. A, title V, § 567(b)(2)(A), , 125 Stat. 1425; Pub. L. 112–239, div. A, title VII, § 713(a), , 126 Stat. 1803.)