On June 17, 2021, the Federal Register published the Department of Defense’s interim final rule that is effective on July 19, 2021 implementing 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 issued its rule to provide uniform standards and procedures for considering and processing these actions.
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.
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 45.2 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.
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).
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.
Rules for filing a claim are addressed in § 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.
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”; and DoD Instruction 6025.18, “Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule Compliance in DoD Health Care Programs.” 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.
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 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.
If you or a loved one may have been injured as a result of medical negligence in a military medical treatment facility in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your military medical treatment facility medical malpractice claim for you and represent you or your loved one in a military medical treatment facility medical malpractice case, if appropriate.
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