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Federal Tort Claims Act Cases: Recovering for Medical Malpractice, Personal Injury, and Property Damage

Limits on the Independent Contractor and Discretionary Function Exceptions

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, August 31, 2023

Recorded event now available

or call 1-800-926-7926

This CLE webinar will guide personal injury attorneys through filing suit under the Federal Tort Claims Act (FTCA) and defeating the government's motions to dismiss or for summary judgment based on the "independent contractor" and the "discretionary function" exceptions to the FTCA. These exceptions often do not apply, and careful attention to the facts, the law, and drafting can dissipate these rote defenses.


Employees and officers of the federal government commit torts like any other member of the public. Injured parties can sue the federal government to recover damages only because under the FTCA, the United States waives sovereign immunity for certain types of common law claims. Examples of actionable claims include medical malpractice, "slip-and-fall," harassment, government misconduct, or destruction of property.

The FTCA, however, provides only a limited waiver of sovereign immunity. The FTCA waives immunity for acts of federal "employees," and the waiver expressly excludes acts of independent contractors. Whether the tortfeasor is an employee or an independent contractor is often a hotly contested issue, and the circuit and lower courts use many different standards to resolve the issue. Thus, practitioners must understand the law in their jurisdiction and plead the facts to withstand a motion to dismiss or for judgment on the pleadings.

The FTCA does not waive immunity if the employee's acts involved a "discretionary function." Whether a function or act is discretionary is governed by subjective standards in U.S. v. Gaubert, 499 U.S. 315 (1991), and Berkovitz v. U.S., 486 U.S. 531 (1988). Due to the subjectiveness of these "tests," there is no clear consensus at the circuit level regarding when an act involved a discretionary function.

Listen as the panel discusses the FTCA, the prerequisites for a suit, these often litigated jurisdictional exceptions, and how to proceed to the case's merits.



  1. Overview of the FCTA
    1. Challenges of suing the government
    2. Prerequisites to suit
    3. Jurisdictional nature of the exclusions
  2. Independent contractor exclusion
  3. Discretionary function exclusion
  4. Practical strategies for avoiding dismissal in the early stages of the case


The panel will review these and other relevant matters:

  • Costs and benefits of suing the federal government
  • General prerequisites for suit under the FTCA
  • The independent contractor exception
  • The discretionary function exception
  • Tips for surviving the government's efforts to dismiss the case


Jacob, Tom
Tom Jacob

National Trial Law

Mr. Jacob focuses his law practice on catastrophic personal injury and medical malpractice, with specific attention to...  |  Read More

Protil, Karl
Karl J. Protil, Jr.

Shulman Rogers

Mr. Protil has secured many multi-million dollar recoveries in numerous state and federal courts in Maryland, Virginia,...  |  Read More

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