Starting an FTCA Malpractice Claim - The Form 95 and How Careful You Should Be

Filing a Form 95 is the essential first step to pursuing a medical malpractice claim under the Federal Tort Claims Act (FTCA). This form notifies the government of your claim and lays the foundation for your case. Since the details you provide on this form can determine the outcome of your claim, getting it right is critical. Here’s what you need to know:

What Must Be Included in a Form 95?

Your Information: Provide your name, address, and contact details. If filing for someone else, such as a minor or deceased family member, include your relationship to them.

Details of the Incident: Clearly describe the medical negligence, including what happened, where, and when. Explain how the negligence caused harm, such as a misdiagnosis, delayed treatment, or surgical error.

Injuries or Damages: Specify the physical, emotional, and financial harm suffered. Attach supporting documentation, such as medical records, expert opinions, or photos.

Amount Claimed: Include a “sum certain”—the exact dollar amount you’re seeking for your damages. Without this, your claim may be invalid.

Signature: Sign and date the form to certify its accuracy.

Why Accuracy Matters

Your Form 95 is the cornerstone of your case. It establishes the facts, the legal basis for your claim, and the compensation you’re seeking. Amending a Form 95 after submission is extremely difficult, especially when it comes to increasing the “sum certain.” If your case proceeds to court, your claim will be limited to the details and damages outlined in the original form. Undervaluing your damages or leaving out key information can weaken your case or reduce your potential recovery.

When Can You Amend a Form 95 because you learned something new about the malpractice and the damages?

28 U.S.C. § 2675(b) provides: “Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.” (emphasis added).  And, importantly, the burden is on a plaintiff to show that the exception set forth in Section 2675(b) applies. Schwartz v. United States, 446 F.2d 1380, 1381 (3d Cir. 1971). 

To determine whether a plaintiff may claim an increased amount of damages above the administrative claim, pursuant to the FTCA's exception in Section 2675(b), Federal Courts of Appeals have employed three different approaches: the “worse-case prognosis” test, the “reasonably foreseeable/reasonably discoverable” test, and the “change in expectations” test. Park v United States, No. 17-13139, 2020 WL 4282731, at *3 (D.N.J. July 27, 2020) (summarizing each approach for evaluating the FTCA's damages cap exception).  

It is best to get a knowledgeable and experience lawyer involved in your case early, to avoid having to amend the claim if possible. 

Challenges in Medical Malpractice Claims

Medical malpractice claims under the FTCA often involve complex evidence, including medical records, expert testimony, and detailed timelines. The Form 95 must reflect this complexity without errors or omissions. Filing an incomplete or incorrect form could jeopardize your entire claim.

How an Attorney Can Help

An experienced FTCA attorney is invaluable in medical malpractice cases. They can help you:

Ensure all necessary details are included and accurately presented.

Properly calculate your damages to avoid undervaluing your claim.

Navigate the procedural rules to avoid costly mistakes.

By working with an attorney, you’ll have confidence that your Form 95 is complete and strategically prepared to support your case.

Get It Right the First Time

Filing a Form 95 is too important to leave to chance, especially in medical malpractice cases where lives and livelihoods are at stake. Our firm specializes in FTCA claims and understands the complexities of proving medical negligence. Contact us today for a free consultation and let us help you build a strong foundation for your case.