Rule2021-12815
Medical Malpractice Claims by Members of the Uniformed Services
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 17, 2021
Effective
July 19, 2021
Issuing agencies
Defense Department
Abstract
This interim final rule implements requirements of the National Defense Authorization Act (NDAA) for Fiscal Year 2020 permitting members of the uniformed services or their authorized representatives to file claims for personal injury or death caused by a Department of Defense (DoD) health care providers s in certain military medical treatment facilities. Because Federal courts do not have jurisdiction to consider these claims, DoD is issuing this rule to provide uniform standards and procedures for considering and processing these actions.
Full Text
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<title>Federal Register, Volume 86 Issue 115 (Thursday, June 17, 2021)</title>
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[Federal Register Volume 86, Number 115 (Thursday, June 17, 2021)]
[Rules and Regulations]
[Pages 32194-32215]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-12815]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 45
[Docket ID: DOD-2021-OS-0047]
RIN 0790-AL22
Medical Malpractice Claims by Members of the Uniformed Services
AGENCY: Department of Defense (DoD) Office of General Counsel, DoD.
ACTION: Interim final rule.
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SUMMARY: This interim final rule implements requirements of the
National Defense Authorization Act (NDAA) for Fiscal Year 2020
permitting members of the uniformed services or their authorized
representatives to file claims for personal injury or death caused by a
Department of Defense (DoD) health care providers s in certain military
medical treatment facilities. Because Federal courts do not have
jurisdiction to consider these claims, DoD is issuing this rule to
provide uniform standards and procedures for considering and processing
these actions.
DATES: This interim final rule is in effect July 19, 2021. Comments
must be received by August 16, 2021.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) number and title, by any of the
following methods:
<bullet> Federal Rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: The DoD cannot receive written comments at this time
due to the COVID-19 pandemic. Comments should be sent electronically to
the docket listed above.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing at
<a href="http://www.regulations.gov">http://www.regulations.gov</a> as they are received without change,
[[Page 32195]]
including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Melissa D. Walters, (703) 681-6027,
<a href="/cdn-cgi/l/email-protection#dfb2bab3b6acacbef1bbf1a8beb3abbaadacf1bcb6a99fb2beb6b3f1b2b6b3"><span class="__cf_email__" data-cfemail="b8d5ddd4d1cbcbd996dc96cfd9d4ccddcacb96dbd1cef8d5d9d1d496d5d1d4">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Signed into law on December 20, 2019, section 731 of the 2020 NDAA
allows members of the uniformed services or their authorized
representatives to file claims for personal injury or death caused by a
DoD health care provider in certain military medical treatment
facilities.
Historically, members of the armed forces have been unable to bring
suit against the government under the Feres doctrine, named for the
plaintiff in Feres v. United States. Based on this 1950 Supreme Court
decision, active duty military personnel may not sue the government for
personal injuries suffered incident to service (generally, while on
active duty). The 2020 NDAA allows Service members, with certain
limitations, to bring administrative claims to seek compensation for
personal injury or death resulting from medical malpractice that
occurred in certain military medical treatment facilities, in addition
to compensation already received under the comprehensive compensation
system that currently exists for military members and their families.
A substantiated claim under $100,000 will be paid directly to the
member or his/her estate by DoD. The Treasury Department will review
and pay claims that the Secretary of Defense values at more than
$100,000. Service members must present a claim that is received by DoD
within two years after the claim accrues. However, the statute allowed
Service members to file claims in 2020 for injuries that occurred in
2017.
II. Legal Authority for This Rule
Based on section 731 of the NDAA, this rule adds to Title 32 of the
Code of Federal Regulations a new part 45, Medical Malpractice Claims
by Members of the Uniformed Services. Title 10 U.S.C.
2733a(f)(2)(A)(ii) describes the claims process, which includes: The
claimant's submission of information to initiate a medical malpractice
claim; the claimant's response to an adjudicator's request for new
information required to substantiate the claim or to determine damages;
an Initial Determination issued by DoD; the opportunity for a claimant
to seek reconsideration of damage calculations in the case of clear
error; and, in most cases, the opportunity for a claimant to file an
administrative appeal.
Claims will be adjudicated based on uniform national standards
consistent with generally accepted standards used in a majority of
States in adjudicating claims under the Federal Tort Claims Act (FTCA),
28 U.S.C. 2671 et seq., without regard to the place where the Service
member received medical care.
III. Summary of Provisions Contained in This Rule
This rule discusses who may file a claim (generally, a member of a
uniformed service allegedly harmed incident to service by malpractice);
what DoD health care providers may be involved (DoD personnel and
personal services contractors acting within the scope of their
employment or duties; where the malpractice must have occurred (in a
``military medical treatment facility'' (MTF) (10 U.S.C. 1073d); how to
file (a written request mailed to a Military Department-specific
address); records DoD will consider (submissions presented by claimant
and any available relevant government records and information otherwise
available to DoD); who has the burden of proof (claimant must
substantiate the claim); how to substantiate a claim; deciding what
caused the alleged harm (DoD liability proportionate to harm
attributable to DoD health care providers); use of final DoD or VA
disability determinations if applicable; calculating economic damages
(principally actual and future health care costs, costs associated with
long term care and disability, and loss of future earnings);
determining non-economic damages (including pain and suffering, up to a
capped amount); and initial decision and administrative appeal
procedures (a single DoD appeals board decides appeals on the written
record as a whole). More detailed information is below.
Section 45.1 Purpose
Section 45.1 explains the purpose of this part. It establishes the
administrative process for adjudication of claims under the new 10
U.S.C. 2733a, which was added to 10 U.S.C. by section 731 of the
National Defense Authorization Act for Fiscal Year 2020. The current
comprehensive compensation system that currently exists for military
members and their families, when members are injured or die incident to
service, applies to all causes of death or disability, whether due to
combat injuries, training mishaps, motor vehicle accidents, naturally
occurring illnesses, with limited exceptions (e.g., when the member is
absent without leave or the injury is due to the member's intentional
misconduct or willful negligence). The new law provides for the
possibility of additional compensation beyond that provided by this
comprehensive compensation system for personal injury or death of a
military member caused by medical malpractice by a DoD health care
provider in certain circumstances.
Section 45.1 also notes that the new medical malpractice claims
process is separate from the Military Health System Healthcare
Resolutions Program.\1\ This existing program is an independent,
neutral, and confidential system that promotes full disclosure of
factual clinical information involving adverse events and outcomes, and
mediation of clinical conflicts. The program is part of the Military
Health System's commitment to transparency, which also includes a
patient's right to be heard as part of any quality assurance review. To
the extent a military member (or any other health care beneficiary)
seeks to obtain more information about an adverse clinical event, the
Healthcare Resolutions Program continues to be a valuable resource
independent of any legal process or claims system. However, the
Healthcare Resolutions Program is not involved with claims or legal
matters. Thus, when a patient files a malpractice claim, under Sec.
45.1 Healthcare Resolutions Specialists disengage from further patient
communications related to the events associated with the claim.
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\1\ <a href="https://health.mil/Reference-Center/Policies/2019/06/18/Healthcare-Resolutions-Disclosure-Clinical-Conflict-Management-and-HCP">https://health.mil/Reference-Center/Policies/2019/06/18/Healthcare-Resolutions-Disclosure-Clinical-Conflict-Management-and-HCP</a>.
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Section 45.2 Claims Payable and Not Payable in General
Section 45.2 provides some of the terms rendering claims payable
and not payable. This section also covers the time for filing claims,
generally within two years after the claim accrues. For claims filed in
calendar year 2020, the time for filing was expanded to three years.
Because 10 U.S.C. 2733a(b)(4) prescribes the time period for filing
claims, state statutes of limitation or repose are inapplicable.
Consistent with 10 U.S.C. 2733a(g), there is a limitation on the amount
of attorney's fees or expenses. The adjudication of claims under this
authority is not an adversarial proceeding, there is no prevailing
party to be awarded costs, and there is no judicial review. The
settlement and adjudication of medical malpractice claims of members of
the uniformed services is final and conclusive per 10 U.S.C. 2735.
[[Page 32196]]
A claim under this regulation is payable only if it may not be
settled or paid under any other law, including the FTCA per Title 10
U.S.C. 2733a(b)(5). Claims are adjudicated based on generally accepted
standards used in a majority of States in adjudicating claims under the
FTCA without regard to the place where the service member received
medical care per Title 10 U.S.C. 2733a(f)(2)(B). In adjudicating
claims, DoD will make every effort to determine the applicable law
adopted by the majority of States (at least 26 States).
Certain exclusions that are part of FTCA law apply to claims under
this new authority as well. These exclusions include the discretionary
function exception, which generally bars any claim challenging a
discretionary agency policy. Another FTCA exclusion that is applicable
to claims under this part is the combatant activities exception,
although only in extremely unusual circumstances such as an attack on a
military hospital. It should be noted, however, that the FTCA exception
regarding any claim arising in a foreign country is not applicable to
claims under this part. Title 10 U.S.C. 2733a(f)(2)(B) refers to such
claims as covered by the new authority.
Section 45.3 Authorized Claimants
Section 45.3 discusses who may file a medical malpractice claim. As
provided in the statute, the claim must be filed by the member of the
uniformed services who is the subject of the medical malpractice claim,
or by an authorized representative on behalf of a member who is
deceased or otherwise unable to file the claim due to incapacitation
per Title 10 U.S.C. 2733a(b)(1). A claim may be filed by or on behalf
of a reserve component member if the claim is in connection with
personal injury or death occurring while the member was in a Federal
duty status. 10 U.S.C. 2733a(i)(3). The statute only authorizes claims
by members of the uniformed services. Thus, the regulation does not
permit derivative claims or other claims from third parties alleging a
separate injury as a result of harm to a member of the uniformed
services. Additionally, medical malpractice claims from members must be
for an injury incident to service per 10 U.S.C. 2733a(a). For members
on active duty, almost any injury or illness arising out of medical
care received at a MTF by a DoD health care provider is considered
incident to service. Medical care provided to a service member based on
military status is incident to service.
Section 45.4 Filing a Claim
Rules for filing a claim are addressed in Sec. 45.4. A member of a
uniformed service or, when applicable, an authorized representative,
may file a claim. Any written claim will suffice provided that it
includes the following: (a) The factual basis for the claim, which
identifies the conduct allegedly constituting malpractice (e.g., theory
of liability and/or breach of the applicable standard of care); (b) a
demand for a specified dollar amount; (c) signed by the claimant or
claimant's duly authorized agent or legal representative; (d) if the
claim is filed by an attorney, an affidavit from the claimant affirming
the attorney's authority to file the claim on behalf of the claimant;
(e) if the claim is filed by an authorized representative, an affidavit
from the representative affirming his/her authority to file on behalf
of the claimant; and (f) unless the alleged medical malpractice is
within the general knowledge and experience of ordinary laypersons, an
affidavit from the claimant affirming that the claimant consulted with
a health care professional who opined that a DoD health care provider
breached the standard of care that caused the alleged harm.
Alternatively, if the claimant is represented by an attorney, unless
the alleged medical malpractice is within the general knowledge and
experience of ordinary laypersons, the claim must include an affidavit
from the attorney affirming that the attorney consulted with a health
care professional who opined that a DoD healthcare provider breached
the standard of care that caused the alleged harm. This requirement for
an affidavit at the time of filing the claim is consistent with the
practice in a majority of States to require an expert report, expert
affidavit, certification or affidavit of merit, or a similar
requirement.
While DoD is not requiring an expert opinion at the time of filing
a claim, claimants may submit whatever information and documentation
they believe necessary to support their claim, as claimants have the
burden to substantiate their claims. As part of the investigation and
evaluation of a claim, DoD will access pertinent DoD or other available
government information systems and records regarding the member in
order to consider fully all facts relevant to the claim. This may
include information in personnel records, medical records, the Defense
Eligibility and Enrollment System (DEERS), reports of investigation,
medical quality assurance records, and other information. Upon DoD's
request, a claimant must identify any pertinent health care providers
outside of DoD and provide a copy of his or her medical records from
each of the identified health care providers, including a statement
that the records are complete. A claimant must provide a medical
release or medical releases upon DoD's request, enabling DoD to obtain
medical records from the identified health care providers.
DoD may require that the claimant provide additional information
DoD believes is necessary for adjudication of the claim, including the
submission of an expert opinion at the claimant's expense. If DoD
intends to deny a claim in which an expert opinion has not been
submitted, prior to denying the claim, DoD will notify the claimant and
provide the opportunity for submission of an expert opinion at the
claimant's expense. DoD may determine an expert opinion is not required
when allegations of medical malpractice are within the general
knowledge and experience of ordinary laypersons, such as when a foreign
object is improperly left in the body or an operation occurred on the
wrong body part.
There is no discovery process for adjudication of claims. However,
claimants may obtain copies of records in DoD's possession that are
part of their personnel and medical records in accordance with DoD
Instruction 5400.11, ``DoD Privacy and Civil Liberties Programs''; \2\
and DoD Instruction 6025.18, ``Health Insurance Portability and
Accountability Act (HIPAA) Privacy Rule Compliance in DoD Health Care
Programs.'' \3\ Claimants are not entitled to attorney work product,
attorney client privileged communications, material that are medical
quality assurance records protected under 10 U.S.C. 1102, predecisional
material, or other privileged information.
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\2\ Available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/540011p.pdf?ver=gM7QU0FeRs8wMwzFXS8uSA%3d%3d">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/540011p.pdf?ver=gM7QU0FeRs8wMwzFXS8uSA%3d%3d</a>.
\3\ Available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/602518p.pdf?ver=2019-03-13-125803-017">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/602518p.pdf?ver=2019-03-13-125803-017</a>.
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Section 45.5 Elements of a Payable Claim; Facilities and Providers
Section 45.5 covers one of the statutory elements of payable
claims, stating that the health care involved occurred in a covered
military medical treatment facility by a DoD health care provider
acting within the scope of employment. As stated in the statute, the
claimed act or omission constituting medical malpractice must have
occurred in a DoD medical center, inpatient hospital, or ambulatory
care center. A
[[Page 32197]]
claim may not be based on health care services provided by DoD health
care providers in any other locations, such as in the field, battalion
aid stations, ships, planes, deployed settings, or any other place that
is not a covered MTF. With respect to covered DoD health care
providers, they include members of the uniformed services, DoD civilian
employees, and personal services contractors of the Department
authorized by DoD to render health care services. A non-personal
services contractor or a volunteer working in an MTF is not a DoD
health care provider for purposes of a payable claim. Claims filed in
court against non-personal services contractors and volunteers would be
analyzed under the Feres doctrine. The DoD health care provider must be
acting within the scope of employment, meaning that the provider was
acting in furtherance of his or her duties in the MTF. For personal
services contractors, ``scope of employment'' means the contractor was
acting within the scope of his or her duties.
Section 45.6 Element of Payable Claim: Negligent or Wrongful Act or
Omission
Section 45.6 establishes rules for determining if a provider's act
or omission was negligent or wrongful. In general, a claimant needs to
prove by a preponderance of evidence that a DoD health care provider in
a covered MTF acting within the scope of employment had a professional
duty to the patient involved and by act or omission breached that duty
in a manner that proximately caused the harm. The provider must
exercise the same degree of skill, care, and knowledge ordinarily
expected of providers in the same field or specialty in a comparable
clinical setting. The standard of care is determined based on generally
recognized national standards, not on the standards of a particular
region, State or locality. A claimant may present evidence to support
what the claimant believes is the standard of care. A claimant may
present evidence to support the failure of the DoD health care provider
to meet the standard of care based on the medical records of the
patient and other documentary evidence of the acts or omissions of the
health care provider.
In addition to the information submitted by the claimant, DoD may
consider all relevant information in DoD records and information
systems or otherwise available to DoD, to include information prepared
by or on behalf of DoD in connection with adjudication of the claim.
DoD will consider medical quality assurance records relevant to the
health care provided to the patient. As required by 10 U.S.C. 1102, DoD
medical quality assurance records are confidential. While such records
may be used by DoD, any information contained in or derived from such
records may not be disclosed to the claimant.
Section 45.7 Element of Payable Claim: Proximate Cause
Rules on determining whether the alleged malpractice was the
proximate cause of the harm suffered by the member are the subject of
Sec. 45.7. In general, a claimant must prove by a preponderance of
evidence that a negligent or wrongful act or omission by a DoD health
care provider was the proximate cause of the harm suffered by the
member. DoD is liable for only the portion of harm that is attributable
to the medical malpractice of a DoD health care provider per 10 U.S.C.
2733a(c)(1). To the extent other causes contributed to the personal
injury or death of the member, whether pre-existing, concurrent, or
subsequent, the potential amount of compensation under this regulation
will be reduced by that proportion of the alternative cause(s);
however, if the claimant's own negligence constituted more than 50% of
the fault, the claim is not payable.
Section 45.8 Calculation of Damages: Disability Rating
Section 45.8 provides rules related to disability ratings and
adjudication of these ratings under disability evaluation systems. DoD
will use the disability rating established in the DoD Disability
Evaluation System under DoD Instruction 1332.18 \4\ or otherwise
established by the Department of Veterans Affairs (VA) to assess the
extent of the harm alleged to have been caused by medical malpractice.
A VASRD-based disability percentage represents the Government's
estimate of the lost earning capacity attributable to an illness or
injury incurred during military service.
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\4\ Available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133218p.pdf?ver=2018-05-24-133105-050">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133218p.pdf?ver=2018-05-24-133105-050</a>.
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Section 45.9 Calculation of Damages: Economic Damages
Calculation of economic damages, which are one component of a
potential damages award, is the subject of Sec. 45.9. Elements of
economic damages in personal injury claims are past expenses, including
medical, hospital and related expenses actually incurred, and future
medical expenses. Also covered are lost earnings, loss of earning
capacity, and compensation paid to a person for essential household
services and activities of daily living that the member can no longer
provide for himself or herself.
Section 45.10 Calculation of Damages: Non-Economic Damages
Non-economic damages are also covered as outlined in Sec. 45.10.
Elements of non-economic damages in medical malpractice cases consist
of past and future conscious pain and suffering, physical
disfigurement, and loss of enjoyment of life. Consistent with the rule
of law in a majority of States, total non-economic damages may not
exceed a cap amount. Based on the current average cap amount in those
States, the total cap amount for all non-economic damages arising from
the malpractice is set at $500,000.
Section 45.11 Calculation of Damages: Offsets for DoD and VA
Compensation
Section 45.11 provides that in the calculation of damages there is
a deduction for compensation paid or expected to be paid by DoD or VA
to the service member for the same harm that is caused by the medical
malpractice. Tort damage awards against the U.S. are generally offset
by other compensation paid by the U.S. for the same harm that is the
subject of a malpractice claim so that the U.S. does not pay more than
once for the injury.
This section lists categories of compensation that are included as
offsets to potential malpractice damages awards when that compensation
relates to harm caused by the act or omission involved, including: Pay
and allowances while a member remains on active duty or in an active
status; disability retired pay; disability severance pay;
incapacitation pay; involuntary and voluntary separation pays and
incentives; death gratuity; housing allowance continuation; Survivor
Benefit Plan; VA disability compensation; VA Dependency and Indemnity
Compensation; Special Survivor Indemnity Allowance; Special
Compensation for Assistance with Activities of Daily Living; Program of
Comprehensive Assistance for Family Caregivers; and the Fry
Scholarship. Also included is an offset of the value of TRICARE
coverage, including TRICARE-for-Life for a disability retiree, family,
or survivors. Future TRICARE coverage is a major part of the
Government's compensation package for a disability retiree or survivor.
Potential malpractice awards are not offset by the present value of
some payments and benefits for which Service members have made payments
or contributions, which would be difficult to quantify,
[[Page 32198]]
including Servicemembers Group Life Insurance; Traumatic Servicemembers
Group Life Insurance; Social Security disability benefits; Social
Security survivor benefits; prior Government contributions to a Thrift
Savings Plan that are inherited by a beneficiary; and commissary,
exchange, and morale, welfare, and recreation facility access; the
value of legal assistance and other services provided by DoD. Medical
care provided while in active service or in an active status prior to
death, retirement, or separation is also not offset.
To illustrate what benefits are available under the existing
comprehensive compensation system, both those that are offset and those
that are not, and the value of these benefits, tables below in the
section titled, ``Impact to the Government,'' provide notional examples
of benefits available under the existing comprehensive compensation
system during Fiscal Year 2020.
DoD will estimate the present value of future payments and
benefits. Many of such payments and benefits in cases of death and
disability are lifetime benefits for members or survivors. With respect
to future compensation and benefits that would change if a surviving
spouse remarries, DoD will not assume remarriage.
Section 45.12 Initial and Final Determinations
Section 45.12 provides rules for provision to claimants of an
Initial Determination regarding the claim. The Initial Determination
may take the form of a grant of a claim and an offer of settlement or
denial of the claim.
If a claim does not contain the information required by Sec.
45.4(b), DoD will issue an Initial Determination stating that DoD will
issue a Final Determination denying the claim unless the deficiency is
cured. DoD will provide the claimant 30 calendar days following receipt
of the Initial Determination to cure the deficiency, unless an
extension of time is granted for good cause. If the claimant does not
timely cure the deficiency, DoD will issue a Final Determination
denying the claim for failure to cure the deficiency. A Final
Determination issued under Sec. 45.12(a) may not be appealed.
If a claim does not, based upon the information provided, state a
claim cognizable under 10 U.S.C. 2733a or this interim final rule, DoD
will issue an Initial Determination denying the claim. An Initial
Determination on these grounds may be appealed under the procedures in
Sec. 45.13.
If the claimant initially does not submit an expert report in
support of his or her claim, where applicable, and DoD intends to deny
the claim, DoD will issue an Initial Determination stating, without
more, that DoD will issue a Final Determination denying the claim in
the absence of an expert report. DoD will provide the claimant 90
calendar days following receipt of the Initial Determination to submit
an expert report, unless an extension of time is granted for good
cause. If the claimant does not timely submit an expert report, DoD
will issue a Final Determination denying the claim, which may not be
appealed, and will provide a brief explanation of the basis for the
denial of the claim to the extent practicable.
Except as provided above, DoD will endeavor to provide a brief
explanation of the basis for an Initial Determination to the extent
practicable. However, as required by 10 U.S.C. 1102, medical quality
assurance records may not be disclosed to anyone outside DoD, to
include the claimant, other Federal agencies, or the judiciary. This
prohibition applies to any information derived from a peer review
obtained under DoD's Clinical Quality Management (CQM) Program to
assess the quality of medical care provided by a DoD health care
provider. DoD has a very extensive CQM Program (under DoD Instruction
6025.13 \5\ and Defense Health Agency Procedural Manual 6025.13) \6\ to
assess the quality of health care services, identify areas where
improvements can be made, and ensure appropriate accountability. The
CQM Program includes a peer review of every potentially compensable
event. DoD considers records of these reviews in determining whether
there was a negligent or wrongful act or omission by a DoD health care
provider in relation to the claim but may not lawfully disclose this
information. Therefore, while DoD will attempt to explain the basis for
the Initial Determination, DoD cannot disclose any information covered
by 10 U.S.C. 1102.
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\5\ DoDI 6025.13, ``Medical Quality Assurance (MQA) and Clinical
Quality Management in the Military Health System (MHS),'' February
17, 2011; Incorporating Change 2 on April 1, 2020 (<a href="http://whs.mil">whs.mil</a>).
\6\ <a href="https://health.mil/Reference-Center/Policies?query=6025.13&isDateRange=0&broadVector=000&newsVector=0000000&refVector=000000000100000&refSrc=1">https://health.mil/Reference-Center/Policies?query=6025.13&isDateRange=0&broadVector=000&newsVector=0000000&refVector=000000000100000&refSrc=1</a>.
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The Initial Determination will include information on the
claimant's right to file an administrative appeal. The claimant may
request reconsideration of the damages contained in an Initial
Determination if, within the time otherwise allowed to file an
administrative appeal, the claimant identifies an alleged clear error
in the damages calculation. DoD will review the alleged clear error and
will issue an Initial Determination on Reconsideration either granting
or denying reconsideration of the Initial Determination and adjusting
the damages calculation, if appropriate. The Initial Determination on
Reconsideration will include information on the claimant's right to
appeal.
Section 45.13 Appeals
The issue of appeals from Initial Determinations is addressed in
Sec. 45.13. In any case, other than a claim that is denied for failure
to provide an expert report, in which the claimant disagrees with the
Initial Determination, the claimant has a right to file an
administrative appeal. A claimant should explain why he or she
disagrees with the Initial Determination but may not submit additional
information in support of the claim unless requested to do so by DoD.
An appeal must be filed within 60 calendar days of the date of the
Initial Determination, unless an extension of time is granted for good
cause. If no timely appeal is filed, DoD will issue a Final
Determination.
Under the new rule, appeals will be decided by an Appeals Board
administratively supported by the Defense Health Agency. The Appeals
Board will consist of not fewer than three and no more than five DoD
officials designated by the Defense Health Agency from the Defense
Health Agency and/or the Military Departments who are experienced in
medical malpractice claims adjudication. Appeals Board members must not
have had any previous role in the claims adjudication under appeal.
Appeals are decided on the written record and decisions will be
approved by a majority of the members. There is no adversarial
proceeding and no hearing. The Appeals Board may obtain or request
information or assessments from appropriate sources, including from the
claimant, to assist in deciding appeals. The claimant has the burden of
proof by a preponderance of evidence that the claim is substantiated in
the written record considered as a whole. Every claimant will be
provided a written Final Determination on the claimant's appeal, which
may adopt by reference the Initial Determination or revise the Initial
Determination, as appropriate. If the Final Determination revises the
Initial Determination, DoD will provide a brief explanation of the
basis for the revisions to the extent practicable. Appeals Board
decisions are final and conclusive. The Appeals Board may reverse the
Initial Determination to
[[Page 32199]]
grant or deny a claim and may adjust the settlement amount contained in
the Initial Determination either upwards or downwards, as appropriate.
Section 45.14 Final and Conclusive Resolution
Section 45.14 states that, as provided in the statute, the
adjudication and settlement of a claim is final and conclusive. Unlike
the FTCA, the Military Claims Act, 10 U.S.C. chapter 163, which
provides the authority for this regulation, does not give Federal
courts jurisdiction over claims. Thus, the administrative adjudication
process for all claims under the Military Claims Act, including medical
malpractice claims under this part, is final and not subject to
judicial review in any court. No claim may be paid unless the amount
tendered is accepted by the claimant in full satisfaction. Settlement
agreements will incorporate the statutory requirements regarding
limitations on attorneys' fees, as well as a bar to any other claim
against the United States or DoD health care providers arising from the
same set of facts.
Section 45.15 Other Claims Procedures and Administrative Matters
Finally, Sec. 45.15 sets out other claims procedures and
administrative matters.
If the claimant is represented by counsel, all communications will
be through the claimant's counsel.
Laws applicable to false claims and false statements to the
Government are applicable to claims and information relating to claims
under this new authority.
This section also notes the requirement of 10 U.S.C. 2733a(e) that
not later than 30 calendar days after a determination of medical
malpractice or the payment of a claim, a report is sent to the
Director, Defense Health Agency to be used for all necessary and
appropriate purposes, including medical quality assurance. This means
that DoD Final Determinations made under this new claims system--even
if, due to offsets for compensation under the comprehensive system
discussed above, no money is paid--will be reviewed under the Military
Health System Clinical Quality Management Program, in accordance with
DoD Instruction 6025.13 \7\ and Defense Health Agency Procedural Manual
6025.13.\8\ That program features comprehensive activities to monitor
the quality of health care in MTFs, identify opportunities for
improvement, and maintain appropriate accountability for health care
providers. That system includes procedures to grant and take specified
adverse actions on clinical privileges and report certain events to the
National Practitioner Data Bank (NPDB) maintained by the Department of
Health and Human Services as a data repository available to health care
systems throughout the United States.\9\ NPDB reporting includes cases
where DoD compensation is paid through the Disability Evaluation System
or survivor benefits attributable to medical malpractice by a DoD
health care provider and now, under this part, paid malpractice claims.
Reports to the NPDB are accompanied by reports to State licensing
boards and certifying agencies of the health care providers involved.
Therefore, in addition to providing an additional potential
compensation remedy, 10 U.S.C. 2733a reinforces DoD Clinical Quality
Management Program procedures for appropriate accountability of DoD
health care providers.
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\7\ Available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/602513p.pdf?ver=2019-03-11-081734-313">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/602513p.pdf?ver=2019-03-11-081734-313</a>.
\8\ Available at <a href="https://health.mil/About-MHS/OASDHA/Defense-Health-Agency/Resources-and-Management/DHA-Publications">https://health.mil/About-MHS/OASDHA/Defense-Health-Agency/Resources-and-Management/DHA-Publications</a>.
\9\ Available at <a href="https://www.npdb.hrsa.gov/">https://www.npdb.hrsa.gov/</a>.
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IV. What To Expect in the Claims Process
a. Who may File a Claim. Service members or former/retired Service
members (``you'') may file a claim. Your authorized representative may
file a claim on your behalf if you are deceased or incapacitated. DoD
will acknowledge receipt of your claim via mail and/or email using the
contact information you provided in your claim.
b. What to Include with a Claim. Your claim must provide, in
writing, the reason why you believe a DoD health care provider
committed malpractice and the amount of money you believe you should
receive. No specific form or format is required.
If you have an attorney, you need to include in your claim filing
an affidavit confirming that you have authorized the attorney to
represent you.
You usually will need to provide an affidavit with your claim
filing that you consulted with a health care professional who opined
that a DoD health care provider breached the medical standard of care
and caused harm to you. You do not need to provide this affidavit if
the malpractice is obvious, such as an operation on the wrong body
part.
Because all claims differ, nothing else is required at the time you
file your claim. DoD may find during the review of your claim that
additional information is needed. DoD will ask you for this information
at that time. You may, but are not required to, submit any other
information that you believe supports your claim at the time you file
it.
c. Where to File a Claim. You should submit the claim to your
Military Department.
Army: Claims should be presented to the nearest Office of the Staff
Judge Advocate, to the Center Judge Advocate of the Medical Center in
question, or with US Army Claims Service, 4411 Llewellyn Avenue, Fort
Meade, Maryland 20755, ATTN: Tort Claims Division.
Navy: Information, directions and forms for filing a claim may be
found at <a href="https://www.jag.navy.mil/">https://www.jag.navy.mil/</a>. Claims should be mailed to the
Office of the Judge Advocate General, Tort Claims Unit, 9620 Maryland
Avenue, Suite 205, Norfolk, Virginia 23511-2949.
Air Force: Claims should be presented either at the Office of the
Staff Judge Advocate at the nearest Air Force Base, or sent by mail to
AFLOA/JACC, 1500 W Perimeter Road, Suite 1700, Joint Base Andrews, MD
20762. POC: Medical Law Branch, AFLOA/JACC 240-612-4620 or DSN 612-
4620.
d. Time for Filing a Claim. Generally, you must file your claim by
the later of (1) two years from the date of the injury or death; or (2)
the date you knew, or with the exercise of reasonable diligence should
have known, of the injury or death and that the possible cause of the
injury or death was malpractice. A special rule existed in 2020 that
allowed claims from 2017 to be filed in 2020, but that rule has
expired.
e. Initial Determination on Your Claim. Once you have filed your
claim, DoD will locate medical records held by DoD and VA and review
your claim to determine whether malpractice occurred.
DoD may ask you for additional information about your medical care
as part of this review. If DoD concludes that medical malpractice
occurred, DoD may ask you for information about the harm to you as a
result of malpractice to determine the amount of money you will be
offered as a settlement. This amount of money is also called
``damages.''
If DoD intends to deny your claim and you have not yet submitted an
expert report in support of your claim, DoD will provide you with an
opportunity to submit one before denying your claim. You usually will
have 90 days to provide an expert report.
Once DoD has completed its review of your claim, you will be issued
an Initial Determination. This Initial
[[Page 32200]]
Determination will either state that your claim is granted and offer
you an amount of money in settlement of your claim or will state that
your claim is denied.
A settlement does not entitle you to any new benefits from DoD or
the VA. A settlement will not cause you to lose any DoD or VA benefits,
whether at the time of the settlement or in the future.
f. Reconsideration. If DoD has made a clear error in the
calculation of the amount of money you are offered to settle your
claim, you may request reconsideration. A clear error is an obvious or
typographical error, such as a reference to $10 when it is clear $100
was intended. The reconsideration process was intended to fix minor
issues without requiring you to file an appeal. You must file your
request for reconsideration within 60 days of receipt of an Initial
Determination. DoD will assume that you received the Initial
Determination within five calendar days after the date the Initial
Determination was mailed or emailed.
g. Appeals. If you disagree with an Initial Determination, you
generally may file an administrative appeal. Your appeal should explain
why you disagree with the Initial Determination. You must file your
appeal within 60 days of receipt of an Initial Determination. DoD will
assume that you received the Initial Determination within five calendar
days after the date the Initial Determination was mailed or emailed.
You may not appeal a Final Determination issued because of
deficiencies in your claim filing such as a missing affidavit or
because DoD has determined you need to submit an expert report. You
will have been given an opportunity to fix deficiencies or submit an
expert report before the Final Determination is issued.
Your appeal will be decided by an Appeals Board of three to five
DoD officials who have experience with medical malpractice claims and
have no prior connection to your claim.
You may not submit additional information in support of your claim
on appeal. DoD will ask you for additional information if it is needed.
The Appeals Board will issue a Final Determination on your claim.
The Appeals Board may reverse the Initial Determination to grant or
deny a claim. The Appeals Board may adjust the damages amount in the
Initial Determination either upwards or downwards. A Final
Determination is not subject to review in any court.
If you do not file an appeal, DoD will issue a Final Determination.
h. Settlement Agreement. You will be paid the damages amount
offered in a Final Determination after you sign a settlement agreement
provided to you by DoD.
i. Claims Process is Final. This claims process is the only process
for Service members to bring medical malpractice claims related to
their service. You may not challenge a Final Determination or the
amount of any damages calculation contained in a Final Determination in
court.
j. Attorneys. You may have an attorney assist you with your claim.
If you have an attorney, DoD will communicate with your attorney
instead of with you regarding your claim. Your attorney may not charge
you attorney fees of more than 20 percent of the amount paid to you
under this process.
V. Regulatory Analysis
a. Executive Order 12866, ``Regulatory Planning and Review'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 13556 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribution of impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. Accordingly, this interim final rule has been
reviewed by the Office of Management and Budget under the requirements
of these Executive Orders. It has been determined to be a significant
regulatory action, although not economically significant. Accordingly,
this regulatory impact analysis presents the costs and benefits of the
rulemaking.
b. Summary
This interim final rule implements requirements of the National
Defense Authorization Act (NDAA) for Fiscal Year 2020 permitting
members of the uniformed services or their authorized representatives
to file claims for personal injury or death caused by a Department of
Defense (DoD) health care providers in certain military medical
treatment facilities. Because Federal courts do not have jurisdiction
to consider these claims, DoD is issuing this rule to provide uniform
standards and procedures for considering and processing these actions
administratively.
c. Affected Population <SUP>10</SUP>
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\10\ Data are from the ``Evaluation of the TRICARE Program:
Fiscal Year 2020 Report to Congress--Access, Cost and Quality Data
through Fiscal Year 2019.'' which can be found at <a href="https://health.mil/Reference-Center/Reports/2020/06/29/Evaluation-of-the-TRICARE-Program-Fiscal-Year-2020-Report-to-Congress">https://health.mil/Reference-Center/Reports/2020/06/29/Evaluation-of-the-TRICARE-Program-Fiscal-Year-2020-Report-to-Congress</a>.
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At the end of Fiscal Year 2019, there were approximately 1,400,000
Active Duty, 390,000 Reserve and National Guard, and 250,000 other
uniformed Service members eligible for DoD healthcare benefits.\11\ or
around 19% of the total eligible beneficiary population. These
uniformed Service members will be able to file claims with DoD alleging
malpractice. There were approximately 8,140,000 other eligible
beneficiaries to include retirees, retiree family members, and family
members of Active Duty Service members. These other eligible
beneficiaries currently may file claims with DoD alleging malpractice.
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\11\ Active Duty include members of the Army, Navy, Air Force,
Marines. The other uniformed services are the Coast Guard, Public
Health Service, and the National Oceanic and Atmospheric
Administration. The Space Force was established December 20, 2019,
and was not included in this Fiscal Year 2019 data.
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d. Costs
As a result of the rule, individuals who believe they were
subjected to malpractice may consider filing a claim. In determining
whether to file a claim, individuals may consult with medical
professionals and attorneys and we assume that most claimants will have
attorneys. We estimate that this will require 5 hours for individuals
to locate an attorney, view and download pertinent medical records, and
discuss the case with an attorney (or a medical professional for
claimants without attorneys). At a mean hourly rate of $27.07 based on
data from the Bureau of Labor Statistics (BLS),\12\ the cost of this
activity is $135.
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\12\ According to the Bureau of Labor Statistics, the median
weekly earnings for full-time wage and salary workers in 2020 was
$984.00, for an hourly rate based on a 40-hour workweek of $24.60.
See https://www/<a href="http://bls.gov/cps/cpsaat39.htm">bls.gov/cps/cpsaat39.htm</a>.
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The cost for a consultation with a medical professional, whether
directly by the claimant or through an attorney varies by the type of
professional. Based upon information available from consultations and
reports obtained in malpractice claims against the government and
estimates of time spent by DoD in similar activity when handling those
claims, we estimate a typical review of records would take about 3 to 5
hours (and include reviewing journals in support of the professional's
opinion), with an additional 2 to 4 hours to write a report (if such a
report is submitted with a
[[Page 32201]]
claim, which is not required). The Department will assume for purposes
of this analysis that the same type of professional would be consulted
as the professional against whom the malpractice is alleged (e.g., a
doctor providing an opinion about the standard of care if a doctor is
alleged to have committed malpractice). Most medical malpractice claims
are brought on a contingent fee basis \13\ so there is no initial cost
to the claimant. Based on similar claim analysis activity in handing
malpractice claims, we estimate an attorney might spend 17-26 hours
analyzing a claim before filing. We use BLS data \14\ to value time
spent by these individuals, and we adjust mean wage rates upward by 100
percent to account for overhead and benefits. This implies hourly rates
of $206.12 for physicians, $76.94 for nurses, and $111.62 for physician
assistants, and $143.18 for lawyers. As a result, the estimated cost
for medical review would be approximately $231 to $1,855, and the
estimated cost for attorney time would be approximately $2,434 to
$3,723.
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\13\ Joanna Shepherd, Uncovering the Silent Victims of the
American Medical Liability System, 67 Vanderbilt Law Review 151, 162
(2019) Available at: <a href="https://scholarship.law.vanderbilt.edu/vlr/vol67/iss1/2">https://scholarship.law.vanderbilt.edu/vlr/vol67/iss1/2</a>.
\14\ See <a href="https://www.bls.gov/oes/2020/may/oes_nat.htm">https://www.bls.gov/oes/2020/may/oes_nat.htm</a>. Note that
we use wages for family medical physicians as a proxy for
physicians.
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The cost to a Service member or an authorized representative for
the filing itself will vary based on the amount of information the
Service member includes with his or her filing. A basic letter stating
the factual basis for the claim and including a demand for a specified
dollar amount would cost the claimant postage ($0.55 per claim, or
$27.50 for an estimated 50 claims) and possibly minimal photocopying.
Claimants will likely choose to use certified mail, requiring
additional postage of $3.35 per claim (or $167.50 for an estimated 50
claims per year). Two affidavits are likely required, one containing a
statement from the claimant indicating he or she consulted with a
health care professional and obtained an opinion from that health care
professional that the medical standard of care was breached and one
affirming that a representative is authorized to represent the
claimant. Those entitled to legal assistance under 10 U.S.C. 1044 (such
as Active Duty Service members, retired Service members, and survivors)
would be able to obtain notarial services at no cost. Most likely,
those filing claims would fall into one of these categories and so
could obtain notarial services at no cost. However, this rule results
in societal costs associated with these notarial services. We estimate
that notarial services will require the equivalent of 20 minutes of
paralegal time. Using BLS data,\15\ and adjusting upward by 100 percent
to account for overhead and benefits to arrive at an hourly rate of
$54.44 implies $18.14 in costs per claim. Finally, although not
required, a claimant could submit any other information he or she
chooses, which would result in a variable cost. DoD assumes that
pertinent medical records outside its system would be fairly recent
could be accessed via web portals, resulting in a cost to the claimant
of only the cost of printing and postage. If the claimant elects to
submit receipts, the claimant would need to pay the cost of printing or
photocopying, as well as postage. DoD requests public comment on costs
faced by claimants.
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\15\ See <a href="https://www.bls.gov/oes/2020/may/oes_nat.htm">https://www.bls.gov/oes/2020/may/oes_nat.htm</a>.
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In 2020, DoD received 149 malpractice claims filed by Active Duty
beneficiaries under the process in this Part and 173 malpractice claims
filed by other beneficiaries under either the FTCA or MCA. Section
2733a(b)(4) requires claims to be presented to DoD within two years
after the claim accrues, although section 731 of the Fiscal Year 2020
NDAA allowed claims accruing in 2017 to be filed in 2020. In future
years, when three years' worth of claim filings are not compressed in
the same year and the requirement for consultation with a health care
professional in certain circumstances in advance of filing takes
effect, DoD would anticipate around 50 claims per year.\16\ Based on
information related to malpractice claims not filed after
consideration, we estimate that 90% of the claims considered by
individuals and their attorneys will not be filed.\17\ As a result, we
estimate that 500 claims will be considered, and that 50 claims will be
filed by Service members per year.
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\16\ These are the total number of claims, prior to any analysis
of the merits of the claims, or analysis of whether the claims were
properly filed (e.g., whether the claims were timely). The
Congressional Budget Office (CBO), when scoring section 731, assumed
an additional 50 claims per year would be paid at cost of $600,000
per claim, for a total of $30,000,000 per year or $300,000,000 over
10 years. These estimates did not appear to take into account
offsets so the number of paid claims will be less.
\17\ Joanna Shepherd, Uncovering the Silent Victims of the
American Medical Liability System, 67 Vanderbilt Law Review 151
(2019) Available at: <a href="https://scholarship.law.vanderbilt.edu/vlr/vol67/iss1/2">https://scholarship.law.vanderbilt.edu/vlr/vol67/iss1/2</a>.
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The categories of costs for considered claims are described above.
In sum, we estimate costs of $2,822 to $5,735 per claim. This implies
total costs of $1,401,102 to $2,857,602 each year for considered
claims.
Next, we estimate costs associated with processing claims. Many
steps in processing a claim will be the same for DoD whether or not the
claim has merit. Based on activity in non-medical malpractice claims,
we anticipate 3 hours of paralegal time for activities such as logging
in claims, sending acknowledgment letters, mailing certified letters
containing the outcome of a claim, drafting vouchers for payment, and
filing/data entry. Assuming a GS-11 paralegal at the step 5 salary rate
of $81,634 based on the 2020 Washington, DC, locality pay table (an
hourly rate of $39.12) and the total value of labor including wages,
benefits, and overhead being equal to 200 percent of the wage rate, the
cost for this paralegal activity per claim is $234.72. We estimate that
the approximately same amount of time that a claimant's attorney would
spend analyzing a claim (17-26 hours of attorney time) would be spent
by DoD attorneys to analyze the claim, conduct legal research, consult
with experts, and draft a determination. Assuming a GS 13/14 at an
average GS 13/14 salary of $127,788 based on the 2020 Washington, DC,
locality pay table (an hourly rate of $61.23) and the total value of
labor including wages, benefits, and overhead being equal to 200
percent of the wage rate, this attorney activity would cost $2,081 to
$3,184 per claim.
Of these 50 claims, for purposes of this analysis, based on
historical malpractice claims data involving non-Service members, we
assume 27% of claimants will have claims for which DoD determines
malpractice occurred, or 14 claims. For these claims, based on time
spent by DoD on the damages portion of current malpractice claims
against the government, DoD estimates claimants' attorneys and DoD
attorneys will spend 6-8 hours respectively on matters pertaining to
damages. This results in a cost per claim of $859 to $1,145 for
claimants' attorneys and $748 to $997 for DoD attorneys.
Of submitted claims, DoD estimates that claimants will appeal all
claims that do not result in a payment of damages, resulting in 36
appeals annually. Note that this is described in more detail in the
transfers section. We estimate it will take around the same amount of
time spent on initial determination activities for appeal activities,
or 17-26 hours per claim for both claimants' attorneys (at a cost of
$2,434 to $3,723) and DoD attorneys (at a cost of $2,081 to $3,184) and
3 hours per claim by DoD paralegals (at a cost of $235). This implies
total annual costs of $171,000 to $257,112 for appeals.
[[Page 32202]]
As a result, we estimate total annual processing costs for these 50
claims to be $309,284 to $458,036.
In summary, total estimated annual costs of this interim final rule
are $1,710,386 to $3,315,638.
e. Transfers
Regardless of the number of claims in which malpractice occurred,
the only claims in which damages will be awarded are those which exceed
the offsets for any payment to be made.\18\ Subject to some exceptions
such as insurance benefits for which Service members have paid
premiums, benefits received through the DoD and VA comprehensive
compensation system applicable to all injuries and deaths will be
applied as an offset in calculating malpractice damages to prevent a
double recovery. Because of these offsets, regardless of the number of
claims filed, the only claims pertinent for purposes of payments made
by the government are those that would exceed applicable offsets.
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\18\ The Congressional Budget Office (CBO), when scoring section
731, assumed an additional 50 claims per year would be paid at cost
of $600,000 per claim, for a total of $30,000,000 per year or
$300,000,000 over 10 years. These estimates did not appear to take
into account offsets so the number of paid claims will be less.
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We estimate 7 claims per year will result in additional payments
made to individuals, which is the number of claims anticipated to
involve additional payments after offsets are applied. To help explain
how we reached this estimate, we prepared the following tables as
notional examples to illustrate what benefits are available under the
existing comprehensive compensation system, both those that are offset
and those that are not, and the value of these benefits in Fiscal Year
2020. In addition to the benefits in the above tables, disability
retirees and survivors receive healthcare for life through TRICARE. In
Fiscal Year 2020, based on information from the Office of the Assistant
Secretary of Defense for Health Affairs, the average value of the
TRICARE benefit for an under-65 retiree family of three was $14,600 per
year. Benefits provided through the Social Security Administration,
such as Social Security disability benefits and Social Security
survivor benefits, are also in addition to the above tables.
Calculations in the tables were provided by the Office of Military
Compensation Policy, within the Office of the Under Secretary of
Defense for Personnel and Readiness.
BILLING CODE 5001-06-P
[[Page 32203]]
[GRAPHIC] [TIFF OMITTED] TR17JN21.000
[[Page 32204]]
[GRAPHIC] [TIFF OMITTED] TR17JN21.001
[[Page 32205]]
[GRAPHIC] [TIFF OMITTED] TR17JN21.002
[GRAPHIC] [TIFF OMITTED] TR17JN21.003
[[Page 32206]]
[GRAPHIC] [TIFF OMITTED] TR17JN21.004
[[Page 32207]]
[GRAPHIC] [TIFF OMITTED] TR17JN21.005
BILLING CODE 5001-06-C
We estimate that 7 claims per year would have damages that would
exceed the offset amount of $1.1 million. We used the notional example
in Table 2(d), the lowest of the estimates in the notional examples, as
the basis for the $1.1 million offset. For the Table 2(b) example of
the married enlisted member with two children in the grade of E-6 who
is medically retired with a 50 percent disability rating, the current
value of her lifetime compensation would be $1,142,430. In addition to
the $1,142,430 paid, benefits include medical care for the retired
Service member and her family. All these amounts would offset any
damages award.
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\19\ In these tables, ``O-5'' refers to an officer grade; ``E-
4'' to an enlisted grade.
\20\ Amount shown is annual. The spouse SBP annuity is 55% of
what retired pay would have been had the member retired with a full
disability retirement on the date of his or her death. SBP is
adjusted annually for cost-of-living. The amount reflected is for
2020 and assumes the spouse receives the full amount of SBP. SBP is
subject to offset if the spouse also receives DIC (only for the
portion of DIC payable to the spouse. If SBP is paid to the children
instead of the spouse, there is no offset but the annuity ends when
all children reach the age of majority).
\21\ Basic Monthly Rate for 2020 is $1,340.14 plus $332.00 per
child age 18 or younger. $16,081 is payable as DIC for the spouse
which is offset against SBP.
\22\ SSIA is only received if SBP is reduced by the amount of
DIC. If children receive SBP in full while the spouse receives DIC,
no SSIA is paid.
\23\ The total payout for the spouse of the E-4 is higher than
that for the E-6 because the spouse is 7 years younger, but both
live until age 87.
\24\ For simplicity of calculation, each member is assumed to
have 12 months of service ``over 8 years'' and 24 months of service
``over 6 years'' in the same paygrade they currently hold, with a
retirement date of December 31, 2019. Prior to retirement, each
member was covered under the High-3 retirement program.
\25\ For members who entered service prior to January 1, 2018,
the applicable multiplier is 2.5 percent unless the member elected
to opt into the Blended Retirement System or elected the Career
Status Bonus and converted to the REDUX retirement program. For
these examples, all members are assumed to have remained under the
legacy ``High-3'' retirement program with a 2.5 percent multiplier.
\26\ Rates for veteran + spouse + child + additional child at
<a href="https://www.benefits.va.gov/COMPENSATION/resources_comp01.asp#BM05">https://www.benefits.va.gov/COMPENSATION/resources_comp01.asp#BM05</a>.
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We then estimated the number of claims likely to exceed $1.1
million using claims data from non-Service member claims under the FTCA
or MCA. In 2019 and 2020, the Military Departments had 14 claims from
retirees or dependents under the FTCA or MCA with damages that exceeded
$1.1 million, whether through settlement or an adverse court judgment.
The average amount payable for these 14 claims over 2 years was
approximately $2.7 million. In one year, therefore, we estimate that 7
claims by Service members would go forward that exceed the $1.1 million
threshold for payable damages.
[[Page 32208]]
Assuming 7 claims per year going forward exceeding $1.1 million, and
average damages of $1.6 million (the difference between the average
amount of $2.7 million paid per claim in the non-Active Duty claims and
the estimated $1.1 million in offsets per Service member claim), the
additional payments made by the U.S. because of section 731are
estimated to be $11.2 million per year. Of this, the first $100,000 for
each claim would be paid by DoD and the remainder paid by the Treasury
Department, for an estimated total of $0.7 million to be paid by DoD
based on 7 claims and $1.05 million to be paid by the Treasury
Department.
As the tables above illustrate, Government paid benefits would not
be a factor, as this claims process would have no impact on what the
benefits Service member is already receiving, has received, or is
entitled to receive in the future based on his or her injuries.
Total transfers from the U.S. government to claimants are estimated
to be $11.2 million per year.
f. Benefits
Absent the claims process established by section 731, Service
members would not have the opportunity for potential monetary payments
above the amounts they currently receive through current DoD and VA
benefits. In addition to providing an additional potential compensation
remedy, the claims process reinforces DoD Clinical Quality Management
Program procedures for appropriate accountability of DoD health care
providers. NPDB reporting includes cases where DoD compensation is paid
through the Disability Evaluation System or survivor benefits
attributable to medical malpractice by a DoD health care provider and
now, under this part, paid malpractice claims. Reports to the NPDB are
accompanied by reports to State licensing boards and certifying
agencies of the health care providers involved. The claims process
further provides an opportunity for DoD to identify opportunities for
improvement in in the delivery of healthcare, potentially preventing
harm to others based upon measures taken by DoD as a result of a claim
even if the claim does not result in the payment of monetary damages.
Finally, this process is only applicable in certain cases of medical
malpractice.
g. Interim Final Rule Justification
This rule is being issued as an interim final rule based on
explicit statutory authorization and clear Congressional intent.
Specifically, 10 U.S.C. 2733a(f)(3) provides that in order ``to
implement expeditiously'' the new law DoD may issue the regulations the
statute requires ``by prescribing an interim final rule.'' The law also
requires DoD to consider public comments and issue a final rule within
one year after issuing an interim final rule. The new law became
effective January 1, 2020, and Congress desired expeditious
adjudication of claims arising from alleged instances of medical
malpractice dating back to 2017. For this reason, there is good cause
for finding, consistent with 5 U.S.C. 553(b)(B), that prior notice and
public comment are impracticable, unnecessary, or contrary to the
public interest.
h. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
This interim final rule is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601) because it is not a notice of proposed
rulemaking under 5 U.S.C. 601(2).
i. Assistance for Small Entities
This interim final rule does not impose requirements on small
entities.
j. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this
interim final rule as not a major rule, as defined by 5 U.S.C. 804(2).
k. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule whose mandates require non-Federal spending in
any one year of $100 million in 1995 dollars, updated annually for
inflation. This interim final rule will not mandate any requirements
for State, local, or tribal governments, nor affect private sector
costs.
l. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been determined that 32 CFR part 45 does not impose new
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
m. Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This interim final rule will not have a substantial
effect on State and local governments.
List of Subjects in 32 CFR Part 45
Medical, Malpractice, Claims, Uniformed Services.
0
Accordingly 32 CFR part 45 is added to read as follows:
PART 45--MEDICAL MALPRACTICE CLAIMS BY MEMBERS OF THE UNIFORMED
SERVICES
Sec.
45.1 Purpose of this part.
45.2 Claims payable and not payable in general.
45.3 Authorized claimants.
45.4 Filing a claim.
45.5 Elements of payable claim: facilities and providers.
45.6 Element of payable claim: negligent or wrongful act or
omission.
45.7 Element of payable claim: proximate cause.
45.8 Calculation of damages: disability rating.
45.9 Calculation of damages: economic damages.
45.10 Calculation of damages: non-economic damages.
45.11 Calculation of damages: offsets for DoD and VA Government
compensation.
45.12 Initial and Final Determinations.
45.13 Appeals.
45.14 Final and conclusive resolution.
45.15 Other claims procedures and administrative matters.
Authority: 10 U.S.C. 2733a.
Sec. 45.1 Purpose of this part.
(a) In general. The purpose of this part is to establish the rules
and procedures for members of the uniformed services or their
representatives to file claims for compensation for personal injury or
death caused by the medical malpractice of a Department of Defense
(DoD) health care provider. Claims under this part may be settled and
paid by DoD under the Military Claims Act, Title 10, United States
Code, Chapter 163, specifically section 2733a of Title 10 (hereinafter
10 U.S.C. 2733a, section 2733a, or the statute), as added to the
Military Claims Act by section 731 of the National Defense
Authorization Act for Fiscal Year 2020 (Pub. L. 116-92; 133 Stat.
1457). Claims are adjudicated under an administrative process. This
administrative process follows a set of rules and procedures set forth
in this part. These rules and procedures are based primarily on a
number of detailed provisions in the statute.
(b) Relationship to military and veterans' compensation programs.
Federal law provides a comprehensive system of compensation for
military members and their families in cases of
[[Page 32209]]
death or disability incurred in military service. This system applies
to all causes of death or disability incurred in service, whether due
to combat injuries, training mishaps, motor vehicle accidents,
naturally occurring illnesses, household events, with limited
exceptions (e.g., when the member is absent without leave or the injury
is due to the member's intentional misconduct or willful negligence).
This comprehensive compensation system applies to cases of personal
injury or death caused by medical malpractice incurred in service as it
does to all other causes. This part provides for the possibility of
separate compensation in certain cases of medical malpractice but in no
other type of case. A medical malpractice claim under this part will
have no effect on any other compensation the member or family is
entitled to under the comprehensive compensation system applicable to
all members. However, a claimant under this part does not receive
duplicate compensation for the same harm. Thus, with some limited
exceptions, a potential malpractice damages award under this part is
reduced or offset by the total value of the compensation the claimant
is expected to receive under the comprehensive compensation system,
whether or not the claimant ultimately receives such compensation, and
the ultimate amount of a settlement under this part will be the amount,
if any, that a potential malpractice damages award determined under the
terms and conditions of this part exceeds the value of all the
compensation and benefits the claimant is otherwise expected to receive
from DoD or the Department of Veterans Affairs (VA).
(c) Relationship to Healthcare Resolutions Program. The medical
malpractice claims process under this part is separate from the
Military Health System Healthcare Resolutions Program. The Healthcare
Resolutions Program, under Defense Health Agency Procedural Instruction
6025.17, is an independent, neutral, and confidential system that
promotes full disclosure of factual information--including information
involving adverse events and outcomes--and mediation of clinical
conflicts. The program is part of the Military Health System's
commitment to transparency, which also includes a patient's right to be
heard as part of any quality assurance review of care provided. The
Healthcare Resolutions Program is not involved in legal proceedings,
compensation matters, or the adjudication of claims under this part.
However, any member of the uniformed services may engage the Healthcare
Resolutions Program to address non-monetary aspects of his or her
belief that he or she has been harmed by medical malpractice by a DoD
health care provider. Because it is not involved in claims or legal
proceedings, the Healthcare Resolutions Program disengages when a claim
is filed by a service member or his or her representative.
Sec. 45.2 Claims payable and not payable in general.
(a) In general. This section sets forth a number of terms and
conditions included in the statute (10 U.S.C. 2733a) that describe
claims that are payable and not payable. Some of these terms and
conditions are discussed in more detail in later sections of this part.
(b) Claim not otherwise payable. As required by the statute
(section 2733a(b)(5)), a claim under this Part may only be paid if it
is not allowed to be settled and paid under any other provision of law.
This limitation provides that it cannot be a claim allowed under the
Federal Tort Claims Act (FTCA), 28 U.S.C. 1346 and Chapter 171. Claims
against the United States filed by members of the uniformed services or
their representatives for personal injury or death incident to service
are not allowed under the FTCA. These claims may be allowed under this
Part if they meet the other applicable terms and conditions.
(c) Time period for filing claims. (1) The statute (section
2733a(b)(4)) requires that a claim must be received by DoD in writing
within two years after the claim accrues. For mailed claims, timeliness
of receipt will be determined by the postmark.
(2) There is a special rule for claims filed during calendar year
2020. Such claims must be presented to DoD in writing within three
years after the claim accrues. The tolling provisions under the
Servicemembers Civil Relief Act, 50 U.S.C. 3901-4043, are not
applicable under this section.
(3) For purposes of applying the time limit for filing a claim, a
claim accrues as of the latter of:
(i) The date of the act or omission by a DoD health care provider
that is the basis of the malpractice claim; or
(ii) The date on which the claimant knew, or with the exercise of
reasonable diligence should have known, of the injury and that
malpractice was its possible cause.
(4) State statutes of limitation or repose are inapplicable.
(d) No claim for attorney's fees or expenses in addition to
statutorily allowed amount. In calculating the amount that may be paid
under this part, consistent with section 2733a(c)(2), there is no
additional amount permitted for attorneys' fees or expenses associated
with filing a claim or participating in any process relating to the
adjudication of the claim. The adjudication of claims under this part
is not an adversarial proceeding and there is no prevailing party to be
awarded costs.
(e) Claims adjudication based on national standards. As required by
the statute (section 2733a(f)(2)(B)), claims are adjudicated based on
national standards consistent with generally accepted standards used in
a majority of States in adjudicating claims under the FTCA. The
determination of the applicable law is without regard to the place of
occurrence of the alleged medical malpractice giving rise to the claim
or the military or executive department or service of the member of the
uniformed services. Foreign law has no role in the case of claims
arising in foreign countries. The legal standards set forth in other
sections of this part apply to determinations with respect to:
(1) Whether an act or omission by a DoD health care provider in the
context of performing medical, dental, or related health care functions
was negligent or wrongful, considering the specific facts and
circumstances;
(2) Whether the personal injury or death of the member was
proximately caused by a negligent or wrongful act or omission of a DoD
health care provider in the context of performing medical, dental, or
related health care functions, considering the specific facts and
circumstances;
(3) Requirements relating to proof of duty, breach of duty, and
causation resulting in compensable injury or loss, subject to such
exclusions as may be established by this Part; and
(4) Calculation of damages that may be paid.
(f) Certain other claims not payable. The generally accepted legal
standards under FTCA that are required to be reflected in the
adjudication of claims under this Part include certain exclusions that
are part of FTCA law.
(1) The due care and discretionary function exceptions apply to
claims under this part.
(i) The due care and discretionary function exceptions, 28 U.S.C.
2680(a), bar any claim based upon an act or omission of a DoD health
care provider, exercising due care, in the execution of a statute or
regulation or based upon the exercise or performance of any
discretionary function or duty on the part of DoD or a DoD health care
provider.
[[Page 32210]]
(ii) The due care exception applies to any DoD health care
provider's act, if carried out with due care, or omission, if omitted
with due care, in the execution of a statute or regulation. The due
care exception applies whether or not the statute or regulation is
valid.
(iii) The discretionary function exception applies to the exercise
or performance or the failure to exercise or perform any discretionary
function. The discretionary function exception applies whether or not
the discretion involved was abused. It applies to any DoD health care
provider's act or omission that is a permissible exercise of discretion
under the applicable statutes, regulations, or directive and, by its
nature, is susceptible to policy analysis. The discretionary function
exception applies to DoD policy decisions regarding clinical practice,
patient triage, force health protection, medical readiness, health
promotion, disease prevention, medical screening, health assessment,
resource management, hiring and retaining employees, selection of
contractors, military standards, fitness for duty, duty limitations,
and health information management, among other matters affecting or
involving the provision of health care services.
(2) The quarantine exception applies to claims under this part.
This exception, consistent with 28 U.S.C. 2680(f), bars any claim for
damages caused by the imposition or establishment of a quarantine by
any agency of the U.S. Government.
(3) The combatant activities exception applies to claims under this
part. This exception, consistent with 28 U.S.C. 2680(j), bars any claim
arising out of the combatant activities of the military or naval
forces, or the Coast Guard, in time of war.
(4) The FTCA's exclusions under 28 U.S.C. 2674 of interest prior to
judgment and punitive damages apply to any claim under this part.
(5) Claims based on intentional or negligent infliction of
emotional distress, other intentional torts, wrongful death/life,
strict liability, products liability, informed consent, negligent
credentialing, or joint and severable liability theories are not
payable under this part.
(6) Breach of medical confidentiality is not actionable under this
part.
Sec. 45.3 Authorized claimants.
(a) In general. This section describes who may file a claim under
this part. A claim may be filed only by a member of a uniformed service
or an authorized representative on behalf of a member who is deceased
or otherwise unable to file the claim due to incapacitation. A member
of the uniformed services includes a cadet or midshipman from the
military academies. It does not include an applicant to join a
uniformed service or a delayed entry program recruit who has not been
accessed into active duty.
(1) As provided in section 2733a(b)(1), the claim must be filed by
the member of the uniformed services who is the subject of the medical
malpractice claim or by an authorized representative on behalf of such
member who is deceased or otherwise unable to file the claim due to
incapacitation.
(2) In some circumstances, a claim otherwise payable under this
part may be filed by or on behalf of a reserve component member. As
provided in section 2733a(i)(3), those circumstances are that the claim
is in connection with personal injury or death that occurred while the
member was in a Federal duty status. This circumstance includes
personal injury, death, or negligent diagnosis resulting from a
negligent or wrongful act or omission that occurred while the member
was in a Federal duty status. In the case of a member of the National
Guard of the United States, a period of Federal duty status may be
under Title 10, U.S. Code, or, based on 10 U.S.C. 12602, duty under
title 32, U.S. Code. Other duty under State control is not covered.
(b) Third party claims not allowed. The statute only authorizes
claims by members of the uniformed services. Thus, the regulation does
not permit derivative claims or other claims from third parties
alleging a separate injury as a result of harm to a member of the
uniformed services. This prohibition includes claims by family members
or survivors arising out of the circumstances of personal injury or
death of a member.
(c) Incident to service requirement. Under section 2733a(a), the
member's personal injury or death must be incident to service. An
injury or death is incident to service if the medical care provided is
based on the member's status under this section.
Sec. 45.4 Filing a claim.
(a) In general. A member of a uniformed service or, when
applicable, an authorized representative may file a claim in writing.
Any written claim will suffice as long as it is meets the requirements
below and is signed by the claimant or authorized representative.
(b) Contents of the claim. The filed claim must include the
following:
(1) The factual basis for the claim, including identification of
the conduct allegedly constituting malpractice (e.g., the theory of
liability and/or breach of the applicable standard of care);
(2) A demand for a specified dollar amount;
(3) If the claim is filed by an attorney, an affidavit from the
claimant affirming the attorney's authority to file the claim on behalf
of the claimant;
(4) If the claim is filed by an authorized representative, an
affidavit from the representative affirming his/her authority to file
on behalf of the claimant;
(5) If the claimant is not represented by an attorney, unless the
alleged medical malpractice is within the general knowledge and
experience of ordinary laypersons, an affidavit from the claimant
affirming that the claimant consulted with a health care professional
who opined that a DoD health care provider breached the standard of
care that caused the alleged harm. Alternatively, if the claimant is
represented by an attorney, unless the alleged medical malpractice is
within the general knowledge and experience of ordinary laypersons, the
claimant must submit an affidavit from the attorney affirming that the
attorney consulted with a health care professional who opined that a
DoD health care provider breached the standard of care that caused the
alleged harm. The requirement in this paragraph does not apply to
claims filed prior to the publication of this Interim Final Rule.
(c) Additional information to file in support of claim. In the
investigation and adjudication of a claim, DoD will access pertinent
DoD records and information systems regarding the member in order to
consider fully all facts that have a bearing on the claim. This
collection may include information in personnel and medical records,
the Defense Eligibility and Enrollment System (DEERS), reports of
investigation, medical quality assurance records, and other
information. Upon DoD's request, a claimant must identify any pertinent
health care providers outside of DoD, and provide a copy of his or her
medical records from each of the identified health care providers,
including a statement that the records are complete. A claimant must
provide medical release(s) upon DoD's request, enabling DoD to obtain
medical records from these health care providers. Claimants may submit
any other relevant information they believe supports their claim, such
as information regarding the medical care involved, the acts or
omissions the claimant believes constitute malpractice, medical
opinions from
[[Page 32211]]
non-DoD providers, and evidence of pain and suffering or other harm.
(d) Substantiating the claim. Under section 2733a(b)(6), DoD is
allowed to pay a claim only if it is substantiated. The claimant has
the burden to substantiate the claim by a preponderance of the
evidence. Upon receipt of a claim, DoD may require that the claimant
provide additional information DoD believes is necessary for
adjudication of the claim, including the submission of an expert
opinion at the claimant's expense. DoD may determine an expert opinion
is not necessary when negligence is within the general knowledge and
experience of ordinary laypersons, such as when a foreign object is
unintentionally left in the body or an operation occurred on the wrong
body part.
(e) No discovery. There is no discovery process for adjudication of
claims under this Part. However, claimants may obtain copies of records
in DoD's possession that are part of their personnel and medical
records in accordance with DoD Instruction 5400.11, ``DoD Privacy and
Civil Liberties Programs''; DoD Instruction 6025.18, ``Health Insurance
Portability and Accountability Act (HIPAA) Privacy Rule Compliance in
DoD Health Care Programs,'' and supplemental DoD issuances to those
Instructions. Claimants are not entitled to attorney work product,
attorney client privileged communications, material that is part of a
DoD Quality Assurance Program protected under 10 U.S.C. 1102,
predecisional material, or other privileged information.
Sec. 45.5 Elements of payable claim: facilities and providers.
(a) In general. This section describes some of the necessary
elements of a payable claim. The health care involved must occur in a
covered military medical treatment facility (MTF) and be provided by a
DoD health care provider acting within the scope of employment.
(b) Covered MTF. (1) As provided in section 2733a(b)(3) and (i)(1),
the alleged act or omission constituting medical malpractice must have
occurred in a covered MTF. For the purposes of this regulation, an MTF
is a medical center, inpatient hospital, or ambulatory care center, as
those facilities are described in 10 U.S.C. 1073d. Fixed dental clinics
are also included.
(2) A claim may not be based on health care services provided by
DoD health care providers in any other location, such as in the field,
battalion aid stations, ships, planes, deployed settings, or in any
other place that is not a covered MTF.
(c) DoD health care provider. As provided in section 2733a(i)(2), a
DoD health care provider is a member of the uniformed services, DoD
civilian employee, or personal services contractor of the Department
(under 10 U.S.C. 1091) authorized by DoD to provide health care
services. A non-personal services contractor or a volunteer working in
an MTF is not a DoD health care provider for purposes of a payable
claim under this part.
(d) Scope of employment. As provided in section 2733a(b)(2), for a
claim to be payable under this part, the DoD health care provider whose
negligent or wrongful act or omission is the basis of a claim must be
acting within the scope of employment, meaning that the provider was
acting in furtherance of his or her duties in the MTF. For personal
services contractors, ``scope of employment'' means the contractor was
acting within the scope of his or her duties.
Sec. 45.6 Element of payable claim: negligent or wrongful act or
omission.
(a) In general. To establish the element of a negligent or wrongful
act or omission, a member of a uniformed service (``claimant'')
allegedly harmed incident to service by medical malpractice must prove
by a preponderance of the evidence that one or more DoD health care
providers in a covered MTF acting within the scope of employment had a
professional duty to the patient involved and by act or omission
breached that duty which proximately caused the injury or death.
(b) Standard of care. The professional duty referred to in
paragraph (a) of this section is a duty to exercise the same degree of
skill, care, and knowledge ordinarily expected of providers in the same
field or specialty in a comparable clinical setting. The standard of
care is determined based on generally recognized national standards,
not on the standards of a particular region, State or locality.
However, standard of care in the military context may be impacted by
the particular setting and the availability of resources in that
setting.
(c) Breach of the standard of care. A breach referred to in
paragraph (a) occurs if the health care provider or providers by act or
omission did not meet the standard of care.
(d) Presenting evidence of the standard of care. A claimant may
present evidence to support what the claimant believes is the standard
of care relevant to the care involved in the claim.
(e) Presenting evidence of a failure to meet the standard of care.
(1) A claimant may present evidence to support what the claimant
believes demonstrates the failure of one or more DoD health care
providers to meet the standard of care. That evidence may be based on
the medical records of the patient involved and other documentary
evidence of the acts or omissions of health care providers involved,
including expert reports.
(2) Evidence of an apology by a health care provider or any other
DoD or Military Department personnel, such as hospital directors or
commanders, to or regarding a patient will not be considered evidence
of medical malpractice. Providers often apologize for unexpected or
adverse outcomes independent of whether the provider's acts or
omissions met the standard of care.
(f) Information DoD will consider in assessing whether there was a
negligent or wrongful act or omission. (1) In addition to the
information submitted by the claimant, DoD may consider all relevant
information in DoD records and information systems or otherwise
available to DoD, including information prepared by or on behalf of DoD
in connection with adjudication of the claim.
(2) DoD will consider medical quality assurance records relevant to
the health care provided to the patient. DoD's Clinical Quality
Management Program features reviews of many circumstances of clinical
care. Results of any such reviews of the care involved in the claim
that occurred before or after the claim was filed may be considered by
DoD in the adjudication of the claim. As required by 10 U.S.C. 1102,
DoD medical quality assurance records are confidential. While such
records may be used by DoD, any information contained in or derived
from such records may not be disclosed to the claimant.
Sec. 45.7 Element of payable claim: proximate cause.
(a) In general. (1) In a case otherwise payable under this part, a
claimant must prove by a preponderance of evidence that a negligent or
wrongful act or omission by one or more DoD health care providers was
the proximate cause of the harm suffered by the member.
(2) Under section 2733a(c)(1), DoD is liable for only the portion
of compensable injury, loss, or damages attributable to the medical
malpractice of a DoD health care provider. To the extent other causes
contributed to the personal injury or death of the member, whether pre-
existing, concurrent, or subsequent, the potential amount of
compensation under this regulation will
[[Page 32212]]
be reduced by that proportion of the alternative cause(s).
(b) Comparative negligence. A rule of modified comparative
negligence will apply to claims under this part. If a claimant was
contributorily negligent in relation to the health care provided,
damages will be reduced by the proportion of fault assigned to the
Service member. If the claimant's own negligence constituted more than
50% of the fault, the claim is not payable.
(c) Loss of chance or failure to diagnose. A claimant may recover
for loss of chance for a more favorable clinical outcome in the
diagnosis and treatment of his or her illness or injury. The claimant
must prove by a preponderance of the evidence that one or more DoD
health care providers in a covered MTF acting within the scope of
employment had a professional duty to the claimant and by act or
omission breached that duty and proximately caused harm. In proving
that the claimant suffered harm, the claimant must prove that the lost
chance for a better outcome or the failure to diagnose a condition is
attributable to the provider or providers. The claimant must prove a
substantial loss as opposed to a theoretical or de minimis loss. The
portion of harm attributable to the breach of duty will be the
percentage of chance lost in proportion to the overall clinical
outcome. Damages will be calculated based on this portion of harm.
(d) Information DoD will consider in assessing proximate cause. (1)
In addition to the information submitted by the claimant, DoD may
consider all relevant information in DoD records or information systems
or otherwise available to DoD, including information prepared by or on
behalf of DoD in connection with adjudication of the claim.
(2) DoD will consider medical quality assurance records relevant to
the health care provided to the patient. DoD's Clinical Quality
Management Program features reviews of many circumstances of clinical
care. Results of any such reviews of the care involved in the claim
that occurred before or after the claim was filed may be considered by
DoD in the adjudication of the claim. As required by 10 U.S.C. 1102,
DoD medical quality assurance records are confidential. While such
records may be used by DoD, any information contained in or derived
from such records may not be disclosed to the claimant.
Sec. 45.8 Calculation of damages: disability rating.
(a) In general. For certain purposes relating to calculating
damages for a member in a claim under this part, DoD will use the
disability rating established in the DoD Disability Evaluation System
under DoD Instruction 1332.18 \1\ or otherwise established by the
Department of Veterans Affairs (VA) to assess the extent of the harm
alleged to have been caused by medical malpractice. This rating is
stated as a disability percentage under the VA Schedule for Rating
Disabilities (VASRD) under 38 CFR part 4 or a successor provision.
Under 10 U.S.C. 1216a, DoD is required to use the VASRD for assessing
the degree of disability of a member under the Disability Evaluation
System. DoD will use it for purposes of this part as well. A VASRD-
based disability percentage represents the Government's estimate of the
lost earning capacity attributable to an illness or injury incurred
during military service. A Service member medically separated or
retired through the Disability Evaluation System may receive distinct
DoD and VA disability ratings. DoD will consider disability ratings, to
the extent DoD deems pertinent, for other purposes relating to
calculating damages, such as calculating loss of earning capacity and
non-economic damages.
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\1\ Available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133218p.pdf?ver=2018-05-24-133105-050">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133218p.pdf?ver=2018-05-24-133105-050</a>.
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(b) Disability rating procedures. (1) If a claimant disagrees with
the disability rating received in the DoD or VA disability evaluation
or claims processes, the member must pursue the appeal opportunities
available within the DoD and/or VA to change the member's disability
rating.
(2) In any case in which a member has filed a claim under this part
and also has a disability determination pending under DoD or VA
disability evaluation or claims processes applicable to determinations
or appeals, DoD may, in its discretion, hold in abeyance the claim
under this part pending the outcome of the disability evaluation or
claims process. DoD will notify the claimant that his or her claim is
being held in abeyance.
(3) In any case in which a member has not yet received a DoD or VA
disability evaluation because the member is retained on active duty,
DoD will use the VASRD as the standard for assessing the degree of
disability of the member relevant to the member's claim under this
part.
Sec. 45.9 Calculation of damages: economic damages.
(a) In general. Economic damages are one component of a potential
damages award. The claimant has the burden to prove the amount of
economic damages by a preponderance of evidence. Estimates of future
losses must be discounted to present value.
(b) Elements of economic damages in personal injury cases. Elements
of economic damage are limited to the following:
(1) Past expenses, including medical, hospital, and related
expenses actually incurred. These expenses do not include health care
services provided or paid for by DoD or VA.
(2) Future medical, hospital, and related expenses. These expenses
do not include health care goods and services for which the member is
entitled to receive from, or be reimbursed for by, DoD (including
TRICARE) or VA. Goods and services provided or paid for by DoD or VA
are deemed sufficient to meet the claimant's needs for that particular
type of good or service.
(3) Past lost earnings unrelated to compensation as a member of the
uniformed services. Appropriate documentation is required.
(4) Loss of earning capacity, after deducting for the claimant's
personal consumption from the date of injury causing death until
expiration of the claimant's work-life expectancy, as substantiated by
appropriate documentation. In addition, loss of retirement benefits is
compensable and similarly discounted after appropriate deductions.
Estimates must be discounted to present value.
(5) Compensation when the claimant can no longer perform essential
household services on his or her own behalf, including activities of
daily living. This compensation does not include goods and services the
member is entitled to receive from, or be reimbursed for by, DoD or VA.
Goods and services provided or paid for by DoD or VA are deemed
sufficient to meet the claimant's needs for that particular type of
good or service.
(c) Information DoD will consider in calculating economic damages.
In addition to the information submitted by the claimant, DoD may
consider all relevant information in DoD records or information systems
or otherwise available to DoD, including assessments from appropriate
documentary sources and experts available to DoD.
Sec. 45.10 Calculation of damages: non-economic damages.
(a) In general. Non-economic damages are one component of a
potential damages award. The claimant has the burden of proof on the
amount of non-economic damages by a preponderance of evidence.
[[Page 32213]]
(b) Elements of non-economic damages. Elements of non-economic
damage are limited to the following:
(1) Past and future conscious pain and suffering by the claimant.
This element is physical discomfort as well as mental and emotional
trauma or distress. Loss of enjoyment of life is compensable. The
inability to perform daily activities that one performed prior to
injury, such as recreational activities, is included in this element.
DoD may request an interview of or statement from the member or other
person with primary knowledge of the claimant.
(2) Physical disfigurement. This element is impairment resulting
from an injury to a member that causes diminishment of beauty or
symmetry of appearance rendering the member unsightly, misshapen,
imperfect, or deformed. DoD may require a medical statement and
photographs, documenting the claimant's condition.
(c) Cap on non-economic damages. In any claim under this part,
total non-economic damages may not exceed a cap amount. The current cap
amount is $500,000. Updates to cap amounts in subsequent years will be
published periodically, consistent with changes in prevailing amounts
in the majority of the States with non-economic damages caps.
(d) Information DoD will consider in calculating non-economic
damages. In addition to the information submitted by the claimant, DoD
may consider all relevant information in DoD records or otherwise
available to DoD, including assessments from appropriate documentary
sources and experts available to DoD.
Sec. 45.11 Calculation of damages: offsets for DoD and VA Government
compensation.
(a) In general. Total potential damages calculated under this Part,
both economic and non-economic, are reduced by offsetting most of the
compensation otherwise provided or expected to be provided by DoD or VA
for the same harm that is the subject of the medical malpractice claim.
The general rule is that prospective medical malpractice damage awards
are offset by DoD or VA payments and benefits that are primarily funded
by Government appropriations. However, there is no offset for U.S.
Government payments and benefits that are substantially funded by the
military member.
(b) Eligibility for payments and benefits. In determining the
offsets that are applied to a medical malpractice damages award under
this part, DoD presumes that a claimant will receive all the payments
and benefits for which the claimant is expected to be eligible, whether
or not the claimant has taken steps to obtain the payment or benefit or
ultimately receives such payment or benefit. A claimant may present
evidence that he or she is not eligible for a payment or benefit to
rebut the presumption.
(c) Information considered. In determining offsets under this
section, DoD will consider all data available in DoD records or
information systems, other U.S. Government records systems, and other
information available to DoD. This data may include information on
military pay and allowances, Disability Evaluation System outcomes, VA
disability claims, marital status, number and ages of dependents,
survivor benefits, and other information. Access to all such
information will be in accordance with the Privacy Act, 5 U.S.C. 552a,
and applicable implementing regulations.
(d) Present value of future payments and benefits. In determining
offsets under this section, DoD will estimate the present value of
future payments and benefits. Many such payments and benefits in cases
of disability or death are lifetime benefits for members or survivors.
With respect to any lifetime payments or benefits that may terminate
upon the remarriage of a surviving spouse, DoD will not assume a
remarriage. Estimates will be based on actuarial information provided
by the Chief Actuary, DoD Office of the Actuary, taking into
consideration methods and assumptions approved by the DoD Board of
Actuaries and DoD Medicare-Eligible Retiree Health Care Board of
Actuaries, respectively, as of the recent actuarial valuation date.
(e) Payment and benefit programs. The listings in this section of
certain programs that offset and do not offset potential medical
malpractice damages awards are not all-inclusive and are subject to
adjustment as necessary to account for compensation otherwise provided
by DoD or VA for the same harm that resulted from the medical
malpractice. Because compensation programs are often changed by
Congress, Federal agencies, or judicial decisions, DoD will annually
review relevant programs and take account of any such changes for
purposes of applying the rules of this section to the adjudication of
claims under this part.
(f) Payments and benefits that are offsets. Potential damage awards
under this part are offset by the present value of the following
payments and benefits:
(1) Pay and allowances while a member remains on active duty or in
an active status.
(2) Disability retired pay in the case of retirement due to the
disability caused by the alleged medical malpractice.
(3) Disability severance pay in the case of non-retirement
disability separation caused by the alleged medical malpractice.
(4) Incapacitation pay.
(5) Involuntary and voluntary separation pays and incentives.
(6) Death gratuity.
(7) Housing allowance continuation.
(8) Survivor Benefit Plan.
(9) VA disability compensation, to include Special Monthly
Compensation, attributable to the disability resulting from the
malpractice.
(10) VA Dependency and Indemnity Compensation, attributable to the
disability resulting from the malpractice.
(11) Special Survivor Indemnity Allowance.
(12) Special Compensation for Assistance with Activities of Daily
Living.
(13) Program of Comprehensive Assistance for Family Caregivers.
(14) Fry Scholarship.
(15) TRICARE coverage, including TRICARE-for-Life, for a disability
retiree, family, or survivors. Future TRICARE coverage is part of the
Government's compensation package for a disability retiree or survivor.
(g) Payments and benefits that are not offsets. Potential awards
under this Part are not offset by the present value of the following
payments and benefits.
(1) Servicemembers Group Life Insurance.
(2) Traumatic Servicemembers Group Life Insurance.
(3) Social Security disability benefits.
(4) Social Security survivor benefits.
(5) Prior Government contributions to a Thrift Savings Plan.
(5) Commissary, exchange, and morale, welfare, and recreation
facility access.
(6) Value of legal assistance and other services provided by DoD.
(7) Medical care provided while in active service or in an active
status prior to death, retirement, or separation.
Sec. 45.12 Initial and Final Determinations.
(a) Denial of claim--deficient filing. If a claim does not contain
the information required by Sec. 45.4(b), DoD will issue an Initial
Determination stating that DoD will issue a Final Determination denying
the claim unless the deficiency is cured.
(1) DoD will provide the claimant 30 calendar days following
receipt of the Initial Determination to cure the deficiency, unless an
extension of time is granted for good cause. The date of receipt of the
Initial Determination will
[[Page 32214]]
be presumed to be five calendar days after the date the Initial
Determination was mailed or emailed, unless there is evidence to the
contrary.
(2) If the claimant does not timely cure the deficiency, DoD will
issue a Final Determination denying the claim for failure to cure the
deficiency. A Final Determination issued under paragraph (a) of this
section may not be appealed.
(b) Denial of claim--failure to state a claim. If a claim does not,
based upon the information provided, state a claim cognizable under 10
U.S.C. 2733a or this interim final rule, DoD will issue an Initial
Determination denying the claim. Such an Initial Determination may be
appealed under the procedures in Sec. 45.13.
(c) Denial of claim--absence of an expert report. Where applicable,
if the claimant initially does not submit an expert report in support
of his or her claim and DoD intends to deny the claim, DoD will issue
an Initial Determination stating, without more, that DoD will issue a
Final Determination denying the claim in the absence of an expert
report or manifest negligence.
(1) DoD will provide the claimant 90 calendar days following
receipt of the Initial Determination to submit an expert report, unless
an extension of time is granted for good cause. The date of receipt of
the Initial Determination will be presumed to be five calendar days
after the date the Initial Determination was mailed or emailed, unless
there is evidence to the contrary.
(2) If the claimant does not timely submit an expert report, DoD
will issue a Final Determination denying the claim and will provide a
brief explanation of the basis for the denial to the extent
practicable. A Final Determination issued under this paragraph (c) may
not be appealed.
(d) Initial Determination. (1) Upon consideration of the
information provided by the claimant and relevant information available
to DoD, DoD will issue the claimant a written Initial Determination.
(2) The Initial Determination may be in the form of a certified
letter and/or an email. The Initial Determination may take the form of
a grant of a claim and an offer of a settlement or a denial of the
claim. Subject to applicable confidentiality requirements, such as 10
U.S.C. 1102, privileged information, and paragraph (a) of this section,
DoD will provide a brief explanation of the basis for the Initial
Determination to the extent practicable.
(3) The Initial Determination will include information on the
claimant's right to appeal if the claimant does not agree with the
Initial Determination.
(4) The claimant may request reconsideration of the damages
calculation contained in an Initial Determination if, within the time
otherwise allowed to file an administrative appeal, the claimant
identifies an alleged clear error--a definite and firm conviction that
a mistake has been committed--in the damages calculation. DoD will
review the alleged clear error and will issue an Initial Determination
on Reconsideration either granting or denying reconsideration of the
Initial Determination and adjusting the damages calculation, if
appropriate. The Initial Determination on Reconsideration will include
information on the claimant's right to appeal under the procedures in
Sec. 45.13.
Sec. 45.13 Appeals.
(a) In general. This section describes the appeals process
applicable to Initial Determinations under this part, which include
Initial Determinations on Reconsideration. With the exception of
Initial Determinations issued under Sec. 45.12(a), in any case in
which the claimant disagrees with an Initial Determination, the
claimant has a right to file an administrative appeal. The claimant
should explain why he or she disagrees with the Initial Determination,
but may not submit additional information in support of the claim
unless requested to do so by DoD. An appeal must be received within 60
calendar days of the date of receipt by the claimant/counsel of the
Initial Determination, unless an extension of time is granted for good
cause. The date of receipt of the Initial Determination will be
presumed to be five calendar days after the date the Initial
Determination was mailed or emailed, unless there is evidence to the
contrary. If no timely appeal is received, DoD will issue a Final
Determination.
(b) Appeals Board. Appeals will be decided by an Appeals Board
administratively supported by the Defense Health Agency. Although there
may be, in DoD's discretion, multiple offices that initially adjudicate
claims under this part (such as offices in the Military Departments),
there is a single DoD Appeals Board. The Appeals Board will consist of
not fewer than three and no more than five DoD officials designated by
the Defense Health Agency from that agency and/or the Military
Departments who are experienced in medical malpractice claims
adjudication. Appeals Board members must not have had any previous role
in the claims adjudication under appeal. Appeals are decided on a
written record and decisions will be approved by a majority of the
members. There is no adversarial proceeding and no hearing. There is no
opposing party. The Appeals Board may obtain information or assessments
from appropriate sources, including from the claimant, to assist in
deciding the appeal. The Appeals Board is bound by the provisions of
this Part and will not consider challenges to them.
(c) Burden of proof. The claimant on appeal has the burden of proof
by a preponderance of evidence that the claim is substantiated in the
written record considered as a whole.
(d) Appeals Board decisions. (1) Every claimant will be provided a
written Final Determination on the claimant's appeal. The Final
Determination may adopt by reference the Initial Determination or
revise the Initial Determination, as appropriate. If the Final
Determination revises the Initial Determination, DoD will provide a
brief explanation of the basis for the revisions to the extent
practicable.
(2) An Appeals Board decision is final and conclusive. 10 U.S.C.
2735.
(3) The Appeals Board may reverse the Initial Determination to
grant or deny a claim and may adjust the settlement amount contained in
the Initial Determination either upwards or downwards as appropriate.
Sec. 45.14 Final and conclusive resolution.
(a) Administrative adjudication final. As provided in 10 U.S.C.
2735, the adjudication and settlement of a claim under this part is
final and conclusive and not subject to review in any court. Unlike the
FTCA, the Military Claims Act, 10 U.S.C. chapter 163, which provides
the authority for this part, does not give Federal courts jurisdiction
over claims. Further, no claim under this Part may be paid unless the
amount tendered is accepted by the claimant in full satisfaction.
(b) Additional terms of settlement agreement. (1) Settlement
agreements under this part will incorporate the requirement of section
2733a(g)(1) that no attorney may charge, demand, receive, or collect
for services rendered, fees in excess of 20 percent of any claim
payment amount under this part.
(2) Because settlement and payment of a claim under this part is
under section 2733a(b)(5) conditional on the claim not being allowed to
be settled and paid under any other provision of law, a settlement
agreement under this part will include a provision that it bars any
other claim against the United States or DoD health care providers
arising from the same set of facts.
[[Page 32215]]
Sec. 45.15 Other claims procedures and administrative matters.
(a) Payment of damages. In the event damages are awarded, the
claimant or the claimant's estate is entitled to payment of those
damages.
(b) Communication through counsel. If the claimant is represented
by counsel, all communications will be through the claimant's counsel.
(c) Remedies for filing false claims or making false statements.
Remedies available to the United States for filing false claims with
Federal agencies or making false statements to Federal agencies and
officials are applicable to claims and statements made in connection
with claims under this part. Applicable authorities include 31 U.S.C.
3729 and 18 U.S.C. 1001. False claims and claims supported by false
statements will be denied.
(d) Reports to the Defense Health Agency. As provided in section
2733a(e), not later than 30 calendar days after a Final Determination
of medical malpractice or the payment of all or a portion of a claim
under this part, a report documenting that determination is sent to the
Director, Defense Health Agency to be used for all necessary and
appropriate purposes, including those actions undertaken as part of
DoD's Clinical Quality Management Program.
(e) Monitoring claims adjudications under this part. The General
Counsel of the Defense Health Agency will monitor the performance of
the claims adjudications structures and procedures under this part,
including accounting for the number of claims processed under this part
and the resolution of each claim and identifying means to enhance the
effectiveness of the claims adjudication process.
(f) Authority for actions under this part. To ensure consistency
and compliance with statutory requirements, supplementation of the
procedures in this part is not permitted without approval in writing by
the General Counsel of the Department of Defense. The General Counsel
of the Department of Defense, under DoD Directive 5145.01, ``General
Counsel of the Department of Defense,'' may delegate in writing
authority for making Initial and Final Determinations, and other
actions by DoD officials under this part. As used in this part, and at
DoD's discretion, ``DoD'' may include, but is not limited to, Military
Departments.
Dated: June 14, 2021.
Patricia L. Toppings,
OSD Federal Register Liaison, Department of Defense.
[FR Doc. 2021-12815 Filed 6-16-21; 8:45 am]
BILLING CODE 5001-06-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.