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.
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 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.
Calculation of economic damages, which are one component of a potential damages award, is the subject of § 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.
Non-economic damages are also covered as outlined in § 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 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.
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.
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, 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.
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. Based on information related to malpractice claims not filed after consideration, the DoD estimates that 90% of the claims considered by individuals and their attorneys will not be filed. As a result, the DoD estimates that 500 claims will be considered, and that 50 claims will be filed by Service members per year.
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.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find military medical treatment facility medical malpractice attorneys in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.