U.S. Code » Title 38 » Part PART V— BOARDS, ADMINISTRATIONS, AND SERVICES › Chapter CHAPTER 73— VETERANS HEALTH ADMINISTRATION—ORGANIZATION AND FUNCTIONS › Subchapter SUBCHAPTER II— GENERAL AUTHORITY AND ADMINISTRATION

38 U.S.C. § 7316

Malpractice and negligence suits: defense by United States

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(a)(1) The remedy—(A) against the United States provided by sections 1346(b) and 2672 of title 28, or(B) through proceedings for compensation or other benefits from the United States as provided by any other law, where the availability of such benefits precludes a remedy under section 1346(b) or 2672 of title 28,for damages for personal injury, including death, allegedly arising from malpractice or negligence of a health care employee of the Administration in furnishing health care or treatment while in the exercise of that employee’s duties in or for the Administration shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the health care employee (or employee’s estate) whose act or omission gave rise to such claim.(2) For purposes of paragraph (1), the term “health care employee of the Administration” means a physician, dentist, podiatrist, chiropractor, optometrist, nurse, physician assistant, expanded-function dental auxiliary, pharmacist, or paramedical (such as medical and dental technicians, nursing assistants, and therapists), or other supporting personnel.(b) The Attorney General shall defend any civil action or proceeding brought in any court against any person referred to in subsection (a) (or such person’s estate) for any such damage or 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 Secretary 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 proceeding is brought, to the Attorney General, and to the Secretary.(c) Upon a certification by the Attorney General that the defendant was acting in the scope of such person’s employment in or for the Administration 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. After removal the United States shall have available all defenses to which it would have been entitled if the action had originally been commenced against the United States. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the employee whose act or omission gave rise to the suit was not acting within the scope of such person’s office or employment, 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) The Secretary may, to the extent the Secretary considers appropriate, hold harmless or provide liability insurance for any person to whom the immunity provisions of this section apply (as described in subsection (a)), for damage for personal injury or death, or for property damage, negligently caused by such person while furnishing medical care or treatment (including the conduct of clinical studies or investigations) in the exercise of such person’s duties in or for the Administration, if such person is assigned to a foreign country, detailed to State or political division thereof, or is acting under any other circumstances which would preclude the remedies of an injured third person against the United States, provided by sections 1346(b) and 2672 of title 28, for such damage or injury.(f) The exception provided in section 2680(h) of title 28 shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment (including medical care or treatment furnished in the course of a clinical study or investigation) while in the exercise of such person’s duties in or for the Administration.(Added Pub. L. 102–40, title IV, § 401(a)(3), May 7, 1991, 105 Stat. 219; amended Pub. L. 108–170, title III, § 302(e), Dec. 6, 2003, 117 Stat. 2058.)Editorial NotesAmendments

2003—Subsec. (a)(1). Pub. L. 108–170, § 302(e)(1), substituted “health” for “medical” in three places in concluding provisions.

Subsec. (a)(2). Pub. L. 108–170, § 302(e)(2), substituted “health” for “medical” the first place it appeared and inserted “chiropractor,” after “podiatrist,”.

Statutory Notes and Related SubsidiariesEffective Date of 2003 Amendment

Pub. L. 108–170, title III, § 302(h), Dec. 6, 2003, 117 Stat. 2058, provided that: “The amendments made by this section [amending this section and sections 7401 to 7404, 7409, and 7421 of this title] shall take effect at the end of the 180–day period beginning on the date of the enactment of this Act [Dec. 6, 2003].”

Notes of Decisions
Cited in 70 cases (31 in the last 5 years), 1993–2026 · leading case: Ingram v. Faruque, 728 F.3d 1239 (10th Cir. 2013).
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Ingram v. Faruque, 728 F.3d 1239 (10th Cir. 2013). · cites it 19× “Ingram had a remedy available under 38 U.S.C. § 7316 (“VA Immunity Statute”), which applies the remedy available against the United States under the FTCA to damages arising from the provision of medical services by health care employees of the Veteran’s Administration (“VA”).”
Felisa Tunac v. United States, 897 F.3d 1197 (9th Cir. 2018). · cites it 5× “The panel held that it had jurisdiction to the extent that the complaint alleged negligence by VA healthcare workers (defined as medical professionals and related support staff listed in 38 U.S.C. § 7316 (a)(2)). The panel further held that the claims regarding negligence in VA…”
Levin v. United States, 133 S. Ct. 1224 (2013). · cites it 5× “”); 38 U. S. C. §7316 (f) (“The exception provided in [§ 2680(h)] shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment .”
Jane Doe v. United States, 58 F.4th 955 (8th Cir. 2023). · cites it 6× “First, she argues that the district court relied on an interpretation of 38 U.S.C. § 7316 that nullified both the letter and intent of the statute.”
Johnson v. Vets. Affairs Med. Ctr., 133 F. Supp. 3d 10 (D.D.C. 2015). · cites it 4× “See 38 U.S.C. § 7316 (a)(1). Here, Mr. Johnson has sued the Medical Center and four unnamed Medical Center employees for torts arising out of actions taken by the employees during his inpatient treatment at the Medical Center.”
Blanche Brown v. Jenna Mercadante, 687 F. App'x 220 (3rd Cir. 2017). · cites it 5× “In doing so, the District Court explained that Brown could not proceed with her claims against the Individual Defendants because, under 38 U.S.C. § 7316 , a claim brought against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.”
Leslie Coleman v. United States, 912 F.3d 824 (5th Cir. 2019). “See 38 U.S.C. § 7316 (f) ("The exception provided in section 2680(h) of title 28 shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment (including medical care or…”
Stewart J. Smith v. United States, 7 F.4th 963 (11th Cir. 2021). · cites it 2× “Relying on Shinseki, the Ninth Circuit announced a standard for discerning whether a claim is one for medical negligence under the FTCA, instead of a claim that the VA acted improperly in handling a veteran’s request for benefits: “[W]hen a plaintiff brings an action against a…”
Annamma A. Ezekiel & Al Ezekiel v. Jaime T. Michel & United States of Am., 66 F.3d 894 (7th Cir. 1995). · cites it 2× “Because the strict control test would regard every physician as independent, the test does not differentiate between those physicians clearly intended by Congress to receive immunity and those who are not.”
Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000). “See 38 U.S.C. § 7316 (a)(1) (providing exclusive remedy “for damages for personal injury .”
Cavezza v. Metcalf, 260 F. Supp. 3d 823 (E.D. Ky. 2017). · cites it 7× “The United States has moved to substitute itself for the named defendant-employees and argues that substitution is statutorily required under either the VA Immunity Statute, 38 U.S.C. § 7316 (a), or under the Westfall Act’s immunity statute, 28 U.”
Castaneda Ex Rel. Est. of Castaneda v. United States, 546 F.3d 682 (9th Cir. 2008). · cites it 3× “§ 1089 (a) (Department of Defense, Armed Forces Retirement Home, and Central Intelligence Agency medical personnel); 42 U.”
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— 38 U.S.C. § 7316(f) — 4 cases
Doe v. United States of Am. (D. Kan. 2020).
Doe v. United States (D. Kan. 2021).
Cholewa v. United States (E.D. Mich. 2022).
Goldsmith v. United States (E.D. Okla. 2022).
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