
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC1089]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                           PART II--PERSONNEL
 
                   CHAPTER 55--MEDICAL AND DENTAL CARE
 
Sec. 1089. Defense of certain suits arising out of medical 
        malpractice
        
    (a) 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 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.
    (b) 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.
    (c) 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.
    (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) 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).
    (f)(1) 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.
    (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.
    (g) In this section, the term ``head of the agency concerned'' 
means--
        (1) the Director of Central Intelligence, in the case of an 
    employee of the Central Intelligence Agency;
        (2) the Secretary of Transportation, in the case of a member or 
    employee of the Coast Guard when it is not operating as a service in 
    the Navy;
        (3) the Armed Forces Retirement Home Board, in the case of an 
    employee of the Armed Forces Retirement Home; and
        (4) the Secretary of Defense, in all other cases.

(Added Pub. L. 94-464, Sec. 1(a), Oct. 8, 1976, 90 Stat. 1985; amended 
Pub. L. 97-124, Sec. 2, Dec. 29, 1981, 95 Stat. 1666; Pub. L. 98-94, 
title IX, Sec. 934(a)-(c), Sept. 24, 1983, 97 Stat. 651, 652; Pub. L. 
100-180, div. A, title XII, Sec. 1231(18)(A), Dec. 4, 1987, 101 Stat. 
1161; Pub. L. 101-510, div. A, title XV, Sec. 1533(a)(1), Nov. 5, 1990, 
104 Stat. 1733; Pub. L. 105-85, div. A, title VII, Sec. 736(b), Nov. 18, 
1997, 111 Stat. 1814.)


                               Amendments

    1997--Subsec. (a). Pub. L. 105-85, Sec. 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, Sec. 736(b)(2), designated existing 
provisions as par. (1) and added par. (2).
    1990--Subsec. (a). Pub. L. 101-510, Sec. 1533(a)(1)(A), substituted 
``Armed Forces Retirement Home'' for ``United States Soldiers' and 
Airmen's Home''.
    Subsec. (g)(3). Pub. L. 101-510, Sec. 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, Sec. 934(a), inserted ``the United 
States Soldiers' and Airmen's Home,''.
    Subsec. (f). Pub. L. 98-94, Sec. 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, Sec. 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,''.


                    Effective Date of 1990 Amendment

    Amendment by Pub. L. 101-510 effective one year after Nov. 5, 1990, 
see section 1541 of Pub. L. 101-510, set out as an Effective Date note 
under section 401 of Title 24, Hospitals and Asylums.


                    Effective Date of 1983 Amendment

    Section 934(d) of Pub. L. 98-94 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 [Sept. 24, 
1983].''


                    Effective Date of 1981 Amendment

    Section 4 of Pub. L. 97-124 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 [Dec. 29, 1981].''


                             Effective Date

    Section 4 of Pub. L. 94-464 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 [Oct. 8, 1976] and shall apply only to those 
claims accruing on or after such date of enactment.''


                         Congressional Findings

    Section 2(a) of Pub. L. 94-464 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.''
