
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 38USC7316]

 
                      TITLE 38--VETERANS' BENEFITS
 
              PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
 
 CHAPTER 73--VETERANS HEALTH ADMINISTRATION--ORGANIZATION AND FUNCTIONS
 
           SUBCHAPTER II--GENERAL AUTHORITY AND ADMINISTRATION
 
Sec. 7316. Malpractice and negligence suits: defense by United 
        States
        
    (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 medical care employee of the 
Administration in furnishing medical 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 medical care employee (or employee's estate) 
whose act or omission gave rise to such claim.
    (2) For purposes of paragraph (1), the term ``medical care employee 
of the Administration'' means a physician, dentist, podiatrist, 
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, Sec. 401(a)(3), May 7, 1991, 105 Stat. 
219.)

                  Section Referred to in Other Sections

    This section is referred to in sections 515, 1712 of this title.
