42 U.S.C. § 233
The remedy against the United States provided by sections 1346(b) and 2672 of title 28, or by alternative benefits provided by the United States where the availability of such benefits precludes a remedy under section 1346(b) of title 28, for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.
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 his 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 him or an attested true copy thereof to his 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.
Upon a certification by the Attorney General that the defendant was acting in the scope of his 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 merit 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: Provided, That where such a remedy is precluded because of the availability of a remedy through proceedings for compensation or other benefits from the United States as provided by any other law, the case shall be dismissed, but in the event the running of any limitation of time for commencing, or filing an application or claim in, such proceedings for compensation or other benefits shall be deemed to have been suspended during the pendency of the civil action or proceeding under this section.
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.
For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to assault or battery arising out of negligence in the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigations.
The Secretary or his designee may, to the extent that he deems appropriate, hold harmless or provide liability insurance for any officer or employee of the Public Health Service for damage for personal injury, including death, negligently caused by such officer or employee while acting within the scope of his office or employment and as a result of the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigations, if such employee is assigned to a foreign country or detailed to a State or political subdivision thereof or to a non-profit institution, and if the circumstances are such as are likely to preclude the remedies of third persons against the United States described in section 2679(b) of title 28, for such damage or injury.
The Secretary may not approve an application under subsection (g)(1)(D) unless the Secretary determines that the entity-
In the case of a health care provider who is an officer, employee, or contractor of an entity described in subsection (g)(4), section 254h(e) of this title shall apply with respect to the provider to the same extent and in the same manner as such section applies to any member of the National Health Service Corps.
For purposes of this section, and subject to other provisions of this subsection, a covered person shall be deemed to be an employee of the Public Health Service with respect to liability arising out of administration of a covered countermeasure against smallpox to an individual during the effective period of a declaration by the Secretary under paragraph (2)(A).
The Secretary may issue a declaration, pursuant to this paragraph, concluding that an actual or potential bioterrorist incident or other actual or potential public health emergency makes advisable the administration of a covered countermeasure to a category or categories of individuals.
The Secretary shall specify in such declaration the substance or substances that shall be considered covered countermeasures (as defined in paragraph (7)(A)) for purposes of administration to individuals during the effective period of the declaration.
The Secretary shall specify in such declaration the beginning and ending dates of the effective period of the declaration, and may subsequently amend such declaration to shorten or extend such effective period, provided that the new closing date is after the date when the declaration is amended.
The Secretary shall promptly publish each such declaration and amendment in the Federal Register.
Except as provided in paragraph (5)(B)(ii), the United States shall be liable under this subsection with respect to a claim arising out of the administration of a covered countermeasure to an individual only if-
If vaccinia vaccine is a covered countermeasure specified in a declaration under subparagraph (A), and an individual to whom the vaccinia vaccine is not administered contracts vaccinia, then, under the circumstances specified in clause (ii), the individual-
The presumption and deeming stated in clause (i) shall apply if-
In the case of a claim arising out of alleged transmission of vaccinia from an individual described in clause (ii), acts or omissions by such individual shall be deemed to have been taken within the scope of such individual's office or employment for purposes of-
An individual is described by this clause if-
A person may not bring a claim under this subsection unless such person has exhausted such remedies as are available under part C of this subchapter, except that if the Secretary fails to make a final determination on a request for benefits or compensation filed in accordance with the requirements of such part within 240 days after such request was filed, the individual may seek any remedy that may be available under this section.
The time limit for filing a claim under this subsection, or for filing an action based on such claim, shall be tolled during the pendency of a request for benefits or compensation under part C of this subchapter.
This subsection shall not be construed as superseding or otherwise affecting the application of a requirement, under chapter 171 of title 28, to exhaust administrative remedies.
The remedy provided by subsection (a) shall be exclusive of any other civil action or proceeding for any claim or suit this subsection encompasses, except for a proceeding under part C of this subchapter.
The value of all compensation and benefits provided under part C of this subchapter for an incident or series of incidents shall be offset against the amount of an award, compromise, or settlement of money damages in a claim or suit under this subsection based on the same incident or series of incidents.
Subsection (c) applies to actions under this subsection, subject to the following provisions:
The certification by the Attorney General that is the basis for deeming an action or proceeding to be against the United States, and for removing an action or proceeding from a State court, is a certification that the action or proceeding is against a covered person and is based upon a claim alleging personal injury or death arising out of the administration of a covered countermeasure.
The certification of the Attorney General of the facts specified in subparagraph (A) shall conclusively establish such facts for purposes of jurisdiction pursuant to this subsection.
A covered person shall cooperate with the United States in the processing and defense of a claim or action under this subsection based upon alleged acts or omissions of such person.
Upon the motion of the United States or any other party and upon finding that such person has failed to so cooperate-
Should payment be made by the United States to any claimant bringing a claim under this subsection, either by way of administrative determination, settlement, or court judgment, the United States shall have, notwithstanding any provision of State law, the right to recover for that portion of the damages so awarded or paid, as well as interest and any costs of litigation, resulting from the failure of any covered person to carry out any obligation or responsibility assumed by such person under a contract with the United States or from any grossly negligent, reckless, or illegal conduct or willful misconduct on the part of such person.
The United States may maintain an action under this paragraph against such person in the district court of the United States in which such person resides or has its principal place of business.
As used in this subsection, terms have the following meanings:
The term "covered countermeasure" or "covered countermeasure against smallpox", means a substance that is-
The term "covered person", when used with respect to the administration of a covered countermeasure, means a person who is-
The term "qualified person", when used with respect to the administration of a covered countermeasure, means a licensed health professional or other individual who-
The term "arising out of administration of a covered countermeasure", when used with respect to a claim or liability, includes a claim or liability arising out of-
1See References in Text notes below.
2So in original. Probably should be "subclause".
42 U.S.C. § 233
EDITORIAL NOTES
REFERENCES IN TEXTThe references to section 254b of this title the first place appearing in subsecs. (g)(1)(G)(ii), (k)(2), and (n)(1)(C), were in the original references to section 329, meaning section 329 of act July 1, 1944, which was omitted in the general amendment of subpart I (§254b et seq.) of part D of subchapter II of this chapter by Pub. L. 104-299, §2, Oct. 11, 1996, 110 Stat. 3626. Section 256a of this title, referred to in subsecs. (g)(1)(G)(ii), (k)(2), and (n)(1)(C), was repealed by Pub. L. 104-299, §4(a)(3), Oct. 11, 1996, 110 Stat. 3645.The Social Security Act, referred to in subsecs. (m)(2) and (o)(4), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Titles XVIII and XIX of the Act are classified generally to subchapters XVIII (§1395 et seq.) and XIX (§1396 et seq.), respectively, of chapter 7 of this title. For complete classification of this Act to the Code, see section 1305 of this title and Tables.
AMENDMENTS2022-Subsec. (g)(1)(H)(iv). Pub. L. 117-180, §301(b)(1), substituted "this section)." for "this section." Subsec. (k)(3). Pub. L. 117-180, §301(b)(2), inserted "governing board members," after "officers,".Subsec. (p)(7)(A)(i)(II). Pub. L. 117-180, §301(b)(3), realigned margin.Subsec. (q)(5)(A). Pub. L. 117-180, §301(b)(4), struck out "and paragraph (6)" after "subparagraph (B)".Subsec. (q)(6). Pub. L. 117-180, §301(a), struck out par. (6) which read as follows: "Beginning on October 1, 2022, this subsection shall cease to have any force or effect." 2016-Subsec. (q). Pub. L. 114-255 added subsec. (q).2010-Subsec. (o)(1). Pub. L. 111-148 inserted ",or an officer, governing board member, employee, or contractor of a free clinic shall in providing services for the free clinic," after "to an individual".2003-Subsec. (g)(1)(G)(ii). Pub. L. 108-163 substituted "254b" for "254c, 254b(h)" before ",or". Subsec. (k)(2). Pub. L. 108-163 substituted "254b" for "254c, 254b(h)" before "and".Subsec. (n)(1)(C). Pub. L. 108-163 substituted "254b" for "254c, 254b(h)" before ",or".Subsec. (p)(2)(A)(ii). Pub. L. 108-20, §3(i), substituted "paragraph (7)(A)" for "paragraph(8)(A)". Subsec. (p)(2)(C)(ii)(II). Pub. L. 108-20, §3(a), substituted "has resided with, or has had contact with," for "resides or has resided with".Subsec. (p)(2)(D). Pub. L. 108-20, §3(b), added subpar. (D).Subsec. (p)(3). Pub. L. 108-20, §3(c), amended heading and text of par. (3) generally. Prior to amendment, text read as follows: "The remedy provided by subsection (a) of this section shall be exclusive of any other civil action or proceeding for any claim or suit this subsection encompasses."Subsec. (p)(5). Pub. L. 108-20, §3(d), substituted "Covered person" for "Defendant" in heading. Subsec. (p)(7)(A)(i)(II). Pub. L. 108-20, §3(e), amended subcl. (II) generally. Prior to amendment, subcl. (II) read as follows: "vaccinia immune globulin used to control or treat the adverse effects of vaccinia inoculation; and".Subsec. (p)(7)(B). Pub. L. 108-20, §3(f)(1), substituted "means a person" for "includes any person" in introductory provisions.Subsec. (p)(7)(B)(ii). Pub. L. 108-20, §3(f)(2), substituted "auspices-" for "auspices", designated "such countermeasure was administered;" as subcl. (I), and added subcls. (II) to (IV). Subsec. (p)(7)(B)(iv) to (viii). Pub. L. 108-20, §3(f)(3), (4), added cls. (iv) to (viii) and struck out former cl. (iv) which read as follows: "an official, agent, or employee of a person described in clause (i), (ii), or (iii)."Subsec. (p)(7)(C). Pub. L. 108-20, §3(g), substituted "individual who-" for "individual who", designated "is authorized to administer such countermeasure under the law of the State in which the countermeasure was administered." as cl. (i), substituted ";or" for period at end of cl. (i), and added cl. (ii).Subsec. (p)(7)(D). Pub. L. 108-20, §3(h), added subpar. (D).2002-Subsecs. (g)(1)(G)(ii), (k)(2), (n)(1)(C). Pub. L. 107-251 substituted "254b(h)" for "256". Subsec. (p). Pub. L. 107-296 added subsec. (p). 1996-Subsec. (g)(4). Pub. L. 104-299 substituted "under section 254b of this title." for "under any of the following grant programs:" and struck out subpars. (A) to (D) which read as follows: "(A) Section 254b of this title (relating to grants for migrant health centers)."(B) Section 254c of this title (relating to grants for community health centers)."(C) Section 256 of this title (relating to grants for health services for the homeless). "(D) Section 256a of this title (relating to grants for health services for residents of public housing)."Subsec. (o). Pub. L. 104-191 added subsec. (o).1995-Subsec. (g)(1). Pub. L. 104-73, §§3(1), 4, 5, designated existing provisions as subpar. (A), inserted "and subject to the approval by the Secretary of an application under subparagraph (D)" after "For purposes of this section", substituted "an entity described in paragraph (4), and any officer, governing board member, or employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner (subject to paragraph (5)), shall be deemed to be an employee of the Public Health Service for a calendar year that begins during a fiscal year for which a transfer was made under subsection (k)(3) (subject to paragraph (3)). The remedy against the United States for an entity described in paragraph (4) and any officer, governing board member, employee, or contractor" for ",an entity described in paragraph (4) and any officer, employee, or contractor (subject to paragraph (5)) of such an entity who is a physician or other licensed or certified health care practitioner shall be deemed to be an employee of the Public Health Service for a calendar year that begins during a fiscal year for which a transfer of the full amount estimated under subsection (k)(1)(A) of this section was made under subsection (k)(3) of this section (subject to paragraph (3)). The remedy against the United States for an entity described in paragraph (4) and any officer, employee, or contractor", and added subpars. (B) to (H).Subsec. (g)(3). Pub. L. 104-73, §2(a), struck out at end "This subsection shall not apply with respect to a cause of action arising from an act or omission which occurs on or after January 1, 1996."Subsec. (g)(5)(B). Pub. L. 104-73, §8, amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "in the case of an individual who normally performs on average less than 321/2 hours of services per week for the entity for the period of the contract and is a licensed or certified provider of obstetrical services-"(i) the individual's medical malpractice liability insurance coverage does not extend to services performed by the individual for the entity under the contract, or"(ii) the Secretary finds that patients to whom the entity furnishes services will be deprived of obstetrical services if such individual is not considered a contractor of the entity for purposes of paragraph (1)."Subsec. (h). Pub. L. 104-73, §5(b)(1), in introductory provisions substituted "The Secretary may not approve an application under subsection (g)(1)(D) unless the Secretary determines that the entity-" for "Notwithstanding subsection (g)(1) of this section, the Secretary, in consultation with the Attorney General, may not deem an entity described in subsection (g)(4) of this section to be an employee of the Public Health Service Act for purposes of this section unless the entity-". Subsec. (h)(4). Pub. L. 104-73, §5(b)(2), substituted "will fully cooperate" for "has fully cooperated". Subsec. (i)(1). Pub. L. 104-73, §9, substituted "may on the record determine, after notice and opportunity for a full and fair hearing" for "may determine, after notice and opportunity for a hearing". Subsec. (k)(1)(A). Pub. L. 104-73, §2(b)(1), substituted "For each fiscal year" for "For each of the fiscal years 1993, 1994, and 1995" and struck out "(except that an estimate shall be made for fiscal year 1993 by December 31, 1992, subject to an adjustment within 90 days thereafter)" after "beginning of the year". Subsec. (k)(2). Pub. L. 104-73, §§2(b)(2), 10, substituted "for each fiscal year" for "for each of the fiscal years 1993, 1994, and 1995" and "$10,000,000" for "$30,000,000".Subsec. (k)(3). Pub. L. 104-73, §3(2), which directed amendment of subsec. (k)(3) by inserting "governing board member," after "officer,", could not be executed because "officer," did not appear.Subsec. (l). Pub. L. 104-73, §6, added subsec. (l).Subsec. (m). Pub. L. 104-73, §7, added subsec. (m).Subsec. (n). Pub. L. 104-73, §11, added subsec. (n).1993-Subsec. (k)(2). Pub. L. 103-183 inserted at end "Appropriations for purposes of this paragraph shall be made separate from appropriations made for purposes of sections 254b, 254c, 256 and 256a of this title."1992-Subsecs. (g) to (k). Pub. L. 102-501 added subsecs. (g) to (k).
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111-148, title X, §10608(b), Mar. 23, 2010, 124 Stat. 1014, provided that: "The amendment made by this section [amending this section] shall take effect on the date of enactment of this Act [Mar. 23, 2010] and apply to any act or omission which occurs on or after that date."
EFFECTIVE DATE OF 2003 AMENDMENTS Pub. L. 108-163, §3, Dec. 6, 2003, 117 Stat. 2023, provided that: "This Act [see Short Title of 2003 Amendments note set out under section 201 of this title] is deemed to have taken effect immediately after the enactment of Public Law 107-251 [Oct. 26, 2002]." Pub. L. 108-20, §3(j), Apr. 30, 2003, 117 Stat. 649, provided that: "This section [amending this section] shall take effect as of November 25, 2002."
EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107-296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107-296 set out as an Effective Date note under section 101 of Title 6, Domestic Security.
EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104-299, §5, Oct. 11, 1996, 110 Stat. 3645, as amended by Pub. L. 104-208, div. A, title I, §101(e) [title V, §521], Sept. 30, 1996, 110 Stat. 3009-233, 3009-275, provided that: "This Act [enacting sections 254b and 254c of this title, amending this section and sections 256c, 1395x, and 1396d of this title, repealing sections 256 and 256a of this title, and enacting provisions set out as notes under sections 201 and 254b of this title] and the amendments made by this Act shall become effective on October 1, 1996."[Pub. L. 104-208, div. A, title I, §101(e) [title V, §521], Sept. 30, 1996, 110 Stat. 3009-233, 3009-275, provided that the amendment made by that section is effective on the day after Oct. 11, 1996.]
EFFECTIVE DATE OF 1995 AMENDMENT Pub. L. 104-73, §5(c), Dec. 26, 1995, 109 Stat. 779, provided that: "If, on the day before the date of the enactment of this Act [Dec. 26, 1995], an entity was deemed to be an employee of the Public Health Service for purposes of section 224(g) of the Public Health Service Act [42 U.S.C. 233(g)], the condition under paragraph (1)(D) of such section (as added by subsection (a) of this section) that an application be approved with respect to the entity does not apply until the expiration of the 180-day period beginning on such date."
EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102-501, §6, Oct. 24, 1992, 106 Stat. 3272, provided that: "The amendments made by this Act [amending this section] shall take effect on the date of the enactment of this Act [Oct. 24, 1992]."
REPORT ON RISK EXPOSURE OF COVERED ENTITIES Pub. L. 102-501, §5, Oct. 24, 1992, 106 Stat. 3271, provided that the Attorney General, by Apr. 1, 1995, and in consultation with the Secretary of Health and Human Services, was to submit a report to Congress on the medical malpractice liability claims experience of entities subject to subsec. (g) of this section, including their risk exposure and the effect of liability protections on costs incurred.
- Secretary
- The term "Secretary" means the Secretary of Housing and Urban Development.1See References in Text note below.
- Service
- The term "Service" means the Public Health Service;