On October 20, 2023, the U.S. Department of Defense published in the Federal Register proposed updates to its regulations on how Service members can file claims for medical malpractice that may have occurred in military medical treatment facilities. Effective immediately, the Department increased the cap on non-economic damages for active-duty Service member medical malpractice claims from $600,000 to $750,000. This change was published in the Federal Register on October 20, 2023 and applies to any pending claims.
The Defense Department is also proposing to update the regulation to change how it offsets payments to Service members made under the malpractice regulation.
These actions were in direct response to input from U.S. Service Members, Members of Congress, and other key stakeholders. The public has 60 days to comment on the proposed changes to the rule. Following the 60-day comment period (which ends on December 19, 2023), the Defense Department will review and address comments and then publish the final rule.
All current pending claims that would be affected by the proposed changes will be adjudicated once the final rule is effective.
Background
Section 2733a of title 10, United States Code, allows members of the uniformed services or their authorized representatives to file claims, and the Secretary of Defense to pay such claims, for personal injury or death caused by a DoD health care provider in a covered military medical treatment facility, as defined in that section. DoD published an interim final rule to establish uniform standards and procedures for adjudicating these claims on June 17, 2021 (86 FR 32194) and a final rule on August 26, 2022 (87 FR 52446).
The proposed amendments to 32 CFR 45.11 would apply offsets for payments made by the U.S. Government to economic damages only. Under the current version of 32 CFR 45.11, total potential damages 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 amendments would also clarify that future lost wages may be awarded: (1) until the time DoD determines that the claimant is, or is expected to be, medically rehabilitated and able to resume employment; (2) in cases of permanent incapacitation, until expiration of the claimant’s work-life expectancy; or (3) in cases of death, until the expiration of the claimant’s work-life expectancy, after deducting for the claimant’s personal consumption.
While these changes are commendable, we must continue to address unfair and inadequate treatment of our military service members.
If you or a loved one suffered injury (or worse) as a result of medical malpractice while in the U.S. military, you should promptly consult with a military medical malpractice lawyer who handles military medical malpractice claims and who may investigate your military medical malpractice claim for you and represent you or your loved one in a military medical malpractice claim, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find militray medical malpractice claim attorneys who may assist you.
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