Should the Florida Medical Board’s negligent proposal to ban telemedicine for the chronically ill who have no other means of visiting a doctor to receive medical marijuana recommendations then it may be the case that a civil class action against the Florida Medical Board and the State of Florida could be initiated.
Given the great number of petitions we have received from chronically ill patients, their family and friends who have expressed their fears and predicted consequences of such a proposal, it would not be surprising to see these petitioners band together to bring about such a law suit should they or any member of the public suffer loss, injury or death as a consequence of the Florida Medical Boards actions.
Under the FCTA or Federal Torts Claims Act one may sue the Government and her agencies for actions causing serious injury or death.
The boards proposal if successful would force chronically ill people to drive to see their doctors. Such a proposal is negligent, reckless and irresponsible. Given that the staff of MMJ4FLA along with our few hundred petitioners have already advised the Florida Medical Board of these facts opens the door for even greater legal recourse for anyone who suffers injury, loss or death as a result of such a reckless proposal.
Please see more details below about the Federal Torts Claims Act. The team at MMJ4FLA are constantly researching all possible legal avenues besides the FCTA which support our argument to block the boards proposal.
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 (’88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.’89). First, the question must be asked whether the conduct involved ‘an element of judgment or choice.’ U.S. v. Gaubert, 499 U.S. 315, 322 (’91) (quotation omitted). This requirement is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.’ Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be ‘whether that judgment is of the kind that the discretionary function exception was designed to shield’ in that it involves considerations of ‘social, economic, and political policy.’ Gaubert, 499 U.S. at 322-23.
Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d 1524 (10th Cir.’90) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary).
The FTCA specifies that the liability of the U.S. is to be determined ‘in accordance with the law of the place where the [allegedly tortious] act or omission occurred.’ 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.’84); see also Richards v. U.S., 369 U.S. 1, 11-13 (’62).
From the ‘Lectric Law Library’s Lexicon
Federal Tort Claims Act