dissenting.
This case presents an issue of first impression in the circuit courts: Does a medical malpractice liability cap with the characteristics of the Nebraska Act apply to the federal government under the FTCA? In answering this question today, the court abandons any reasonable interpretation of the term “like circumstances.” Furthermore, in attempting to analogize this case to Owen v. United States, 935 F.2d 734 (5th Cir.1991), the court ignores key differences between the Nebraska and Louisiana statutory schemes. I take no issue with that part of the court’s decision that sets forth the relevant legal standards. I cannot concur, however, in the court’s erroneous conclusion that the United States is in “like circumstances” with those health care providers covered by the Nebraska Hospital-Medical Liability Act.
In order to qualify for the protection of the Nebraska Act, a health care provider must meet three qualifications: (1) it must file proof of financial responsibility, (2) it must pay an annual surcharge to the excess liability fund, and (3) it must post a notice informing prospective patients that they will be subject to the terms of the Nebraska Act “unless they file a refusal to be bound by the act with the Director of Insurance of the State of Nebraska.” Neb. Rev.Stat. § 44-2821, 2824 (1988). Participation under the Nebraska Act is entirely voluntary; according to the director of the Nebraska Department of Insurance, less than twenty percent of eligible hospitals met the Act’s requirements in 1986.
Like eighty-nine other Nebraska hospitals, the United States met none of the three requirements for participation under the Act: It filed no proof of financial responsibility; it paid no surcharge to the excess liability fund; and it posted no notice of its participation under the Act. The court contends, however, that the federal government’s position is more closely analogous to the twenty-two hospitals that met all three requirements. It does so by exercising some legal slight of hand: As long as the United States is “willing to perform the functional equivalent of formal compliance” after it has been sued, we will pretend that it complied with the requirements of the Act all along. This new rule puts the United States in “like circumstances” with no one, because no one else can take advantage of the court’s legal fiction. Private hospitals in Nebraska are not permitted to decide on a case-by-case basis whether to “meet the objectives of the Nebraska Act”; they either participate under the Act by meeting all three of its requirements or they do not.
*990The court places great emphasis on the similarities between this case and Owen. There are, however, two fundamental differences between the Louisiana and Nebraska Acts. The first is a provision in the Louisiana Act that limits the liability of state-run hospitals to $500,000. The Owen court stated that
[i]n identifying persons in like circumstances, we find it significant that state health care providers do not contribute to the compensation fund. Rather, a separate provision, § 40:1299.42, limits their liability to $500,000, not including necessary expenses. Like state providers, the United States does not contribute to the compensation fund, but neither does it drain the fund.
935 F.2d at 737 (emphasis added). The Owen court went on to place the United States in the position of a state-run hospital whose liability is capped at $500,000. In contrast, the liability of private Louisiana hospitals that contribute to the compensation fund is limited to $100,000.
The second difference between the Louisiana and Nebraska Acts is that the Louisiana Act does not permit patients to “opt out” of the Act’s coverage. See La.Rev. Stat.Ann. § 40:1299.42 (West 1991). If a Louisiana hospital chooses to participate under the Act, its patients must either accept the liability cap or switch hospitals. In Nebraska, participation under the Act is voluntary for both health care providers and patients; any patient may file with the state a notice of refusal to be bound by the Act. Lozada’s parents, however, had no reason to “opt out” before their son’s birth; the United States never notified Lozada’s parents of its participation under the Act, nor was there any reason for Lozada’s parents to believe that the Act applied to the United States. A particularly disturbing element of today’s decision is that while the court permits the United States to “opt in” to the Act’s coverage ex post facto, it does not give Lozada the same opportunity to “opt out.” This effectively eliminates the “opt out” provision of the Act for patients of federally run hospitals, while permitting those hospitals to “have their cake and eat it too.”
I believe that the United States is in “like circumstances” with the eighty percent of Nebraska health care providers that, like itself, have not complied with any of the requirements of the Nebraska Act. Any other conclusion is both illogical and inequitable, stretching the FTCA beyond its plain meaning and working a further injustice upon the Lozada family. I respectfully dissent.