The Department of Defense (DoD) published on May 10, 2024 a Final Rule in the Federal Register updating its regulation on the medical malpractice claims process for Active-Duty Service members. The updated rule eliminates the offset requirement for payments for non-economic damages.
The updated regulation helps maximize benefits for Service members filing medical malpractice claims that may have occurred in military medical treatment facilities. Under the previous regulation, all payments Service members receive from DoD and the Department of Veterans Affairs related to medical malpractice were used to offset the total claim amount.
Now, eligible claimants can receive without offset the full amount of non-economic damages, which include pain and suffering, physical discomfort, and loss of enjoyment of life.
The Final Rule is effective immediately. All currently pending claims will be adjudicated using the updated calculation method.
The Summary to the Final Rule states:
The DoD is finalizing amendments to apply offsets for payments made by the U.S. Government for medical malpractice claims to potential economic damages only and not to total potential damages. Under this rule total potential damages will no longer be reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or the Department of Veterans Affairs (VA) for the same harm that is the subject of the medical malpractice claim. Instead, only economic damages will be reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or the VA for the same harm that is the subject of the medical malpractice claim. This rule also clarifies future lost earnings may be awarded until the time DoD determines that the claimant is, or is expected to be, medically rehabilitated and able to resume employment; in cases of permanent incapacitation, until expiration of the claimant’s work-life expectancy; or, in cases of death, until the expiration of the claimant’s work-life expectancy, after deducting for the claimant’s personal consumption.
A total of 24 comments were posted on the regulatory docket. One individual commented that the rule change may provide additional compensation for noneconomic harms, although noted that compensation could never make a malpractice victim or survivor whole. A number of comments, including comments from Members of Congress, a local elected official, a State legislator, and individuals sought elimination of the cap on non-economic damages. DoD did not make any changes as a result of these comments.
If you or a loved one were an active-duty service member who may have been injured (or worse) as a result of possible medical malpractice in the United States, you should promptly find an active-duty service member medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your loved one in an active-duty medical malpractice case, if appropriate.
Visit our website or call us on our toll-free number in the United States (800-295-3959) to find medical malpractice attorneys in your state who may help you.
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