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Lance v. United States

filed: November 27, 1995.

IRVING LANCE, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-94-02374-ER. Edward Rafeedie, District Judge, Presiding.

Before: Jerome Farris, Melvin Brunetti and Alex Kozinski, Circuit Judges.

Per Curiam:

Lance was a volunteer worker at a Veterans Administration hospital. He was injured at the hospital and received treatment for the injury there. He's now suing the government under the Federal Tort Claims Act for medical malpractice based on the treatment. As explained below, the Federal Employees Compensation Act preempts FTCA suits based on medical malpractice arising out of federal employees' injuries at work. The district court therefore properly dismissed Lance's FTCA suit.

FECA provides the exclusive remedy against the federal government for federal employees injured at work. 5 U.S.C. § 8116(c). Volunteer workers at Veteran's Administration hospitals are "employees" for FECA purposes. 5 U.S.C § 8101(1)(B); 38 U.S.C. § 513. FECA would therefore clearly bar an FTCA suit by Lance to recover for the injury he suffered at work. Although Lance isn't suing for the injury he suffered at work, but for medical malpractice arising out of the injury, this is a distinction without a difference.

When it comes to federal employees, FECA benefits are the only "liability of the United States . . . because of the injury." 5 U.S.C § 8116(c) (emphasis added). As a matter of textual interpretation, there's a strong argument that liability based on medical malpractice arising out of an injury is liability "because of the injury." FECA's rationale confirms this reading of the statute. Congress enacted FECA to give federal employees smaller but more certain and less costly recoveries in exchange for the right to sue the government in tort. See Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 194, 74 L. Ed. 2d 911, 103 S. Ct. 1033 (1983). Under traditional tort causation principles, a plaintiff's right to recover for an injury generally includes the right to recover for medical malpractice arising out of the injury. See Restatement (Second) of Torts § 457 (1965). Therefore, when Congress gave federal employees the right to recover for an injury under FECA, it took away their right to sue the government in tort for medical malpractice arising out of the injury, as well as for the injury itself. See, e.g., McCall v. United States, 901 F.2d 548, 550-51 (6th Cir. 1990) (citing cases).

The district court also properly dismissed Lance's action to the extent his complaint named Does 1 through 20 as additional defendants: The United States is the only proper defendant in an FTCA action. See Woods v. United States, 720 F.2d 1451, 1452 n.1 (9th Cir. 1983).

AFFIRMED.

19951127

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