The Defense Department on Thursday will officially publish the rules governing how uniformed service members or their representatives can file a claim against the military for malpractice.
The new regulation, which will take effect 30 days after Thursday's publication in the Federal Register, marks a significant step in service members' or families' ability to seek recourse for malpractice. An advance look was posted online Wednesday morning.
For decades, the Feres Doctrine -- named for a plaintiff in a landmark 1950 U.S. Supreme Court case -- has kept active-duty military personnel from suing the government over personal injuries they incurred as a result of their service. This made it difficult for service members to seek recourse from the military when their medical treatment was mishandled.
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But the National Defense Authorization Act passed by Congress in December 2019 contained provisions to change that. Service members -- or their representatives if they are dead or incapacitated -- became eligible to file claims for personal injury or death caused by a military health provider in certain medical treatment facilities.
Bloomberg Government reported in February that troops had filed 227 malpractice claims that had yet to be adjudicated, with a potential total value of $2.16 billion. The Pentagon has not yet provided updated statistics.
The new claims process is in addition to the compensation provided under the military's compensation system, which also covers combat injuries, training mishaps, motor vehicle accidents, or other deaths or disabilities in the line of duty, according to the Federal Register notice. It is separate from the Military Health System Healthcare Resolutions Program, which helps patients obtain more information about medical treatments that may have gone wrong, but is not an avenue for filing claims or legal matters.
There will be no judicial review of adjudicated claims, the Federal Register notice states, and their settlement will be "final and conclusive."
There are some exceptions. Claims that challenge discretionary agency policies, known as the discretionary function exemption, cannot be considered, the notice states.
The combatant activities exception also applies, though the notice said that would probably occur only in "extremely unusual circumstances such as an attack on a military hospital."
To be considered, medical malpractice claims must be for injuries that were "incident to service," according to the register notice. For active-duty service members, this means "almost any injury or illness" that occurred from medical care received at a military treatment facility from a DoD health care provider would qualify.
The rules are stricter for reservists. A claim can be filed for reserve component service members only if it is in connection with personal injury or death that occurred while the member was in a federal duty status.
The new claims process is a last resort for those who have suffered malpractice; the notice states that claims are payable only if they can't be settled or paid under any other law.
The Defense Department will pay claims under $100,000 directly to service members or their estates. But claims valued at more than $100,000 will be reviewed and then paid out by the Treasury Department.
Malpractice claims should be filed with the service member's branch, the notice states. For the Army, that would be the nearest Office of the Staff Judge Advocate, the center judge advocate of the medical center where the alleged malpractice occurred, or with the tort claims division of the Army Claims Service at Fort Meade, Maryland.
Navy and Marine Corps claims should be filed with the tort claims unit of the Office of the Judge Advocate General in Norfolk, Virginia. Air Force and Space Force claims should be presented to the Office of the Staff Judge Advocate of the nearest Air Force base, or mailed to the Air Force Legal Operations Agency, Claims and Tort Litigation Division, at Joint Base Andrews in Maryland.
The new rules set a strict deadline to make claims. Service members must present their claim to the DoD within two years of when the alleged malpractice occurred, though the NDAA allowed service members whose malpractice occurred in 2017 to file claims in 2020.
Any written claim from a service member or authorized representative will suffice as long as it contains the basis for the claim, including the conduct that is alleged malpractice, the dollar amount requested for damages, and is signed by the claimant or their representative. Claims must include an affidavit when filed by an attorney or authorized representative, affirming they are authorized to do so on the service member’s behalf.
And unless the claim covers something that an ordinary layperson can recognize as malpractice, it must include an affidavit from the claimant saying he or she consulted with a health care professional who believes the military health care provider breached the standard of care and caused the alleged harm, according to the notice.
Because claimants have the burden of substantiating their claims, the notice states, they may also submit whatever information and documentation they think is necessary to support it. However, an expert opinion is not necessarily required at the time of filing, the notice adds.
The claimant must prove, by a preponderance of evidence, that the military health care provider on duty "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 notice states.
The health care provider is required to exercise for the claimant the same level of skill, care and knowledge -- based on national standards, not those of regions, states or localities -- that are expected of those in their field in comparable clinical settings, it adds.
When calculating economic damages, the government will consider past medical expenses incurred, along with future medical expenses, lost earnings, loss of earning capacity, and compensation paid for someone to provide essential household services and daily living activities that the service member can no longer provide for him or herself, according to the notice.
Non-economic damages also include past and future pain and suffering, physical disfigurement, and loss of enjoyment of life, up to a total cap of $500,000.
Compensation that the DoD or Veterans Affairs Department has or will pay for the same malpractice harm will be deducted "so that the U.S. does not pay more than once for the injury," the notice states. This could include pay and allowances while on active duty or active status, disability retired or severance pay, incapacitation pay, involuntary and voluntary separation pays and incentives, or death gratuities, among others.
The value of Tricare coverage, including Tricare for Life for a disability retiree, family or survivors, also could be deducted from malpractice damage awards.
There is no discovery process, the notice said, but claimants can obtain DoD records that are part of their personnel and medical records.
Anyone who wishes to file a comment has 60 days to do so.
-- Patricia Kime contributed to this report.
-- Stephen Losey can be reached at firstname.lastname@example.org. Follow him on Twitter @StephenLosey.
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