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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT:
Melissa D. Walters, 703 6816027, melissa.d.walters.civ@mail.mil.
SUPPLEMENTARY INFORMATION:
I. Background
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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.

opportunity for a claimant to file an administrative appeal.
Claims will be adjudicated based on uniform national standards consistent with generally accepted standards used in a majority of States in adjudicating claims under the Federal Tort Claims Act FTCA, 28 U.S.C. 2671 et seq., without regard to the place where the Service member received medical care.

II. Legal Authority for This Rule
III. Summary of Provisions Contained in This Rule This rule discusses who may file a claim generally, a member of a uniformed service allegedly harmed incident to service by malpractice;
what DoD health care providers may be involved DoD personnel and personal services contractors acting within the scope of their employment or duties;
where the malpractice must have occurred in a military medical treatment facility MTF 10 U.S.C.
1073d; how to file a written request mailed to a Military Department-specific address; records DoD will consider submissions presented by claimant and any available relevant government records and information otherwise available to DoD; who has the burden of proof claimant must substantiate the claim; how to substantiate a claim;
deciding what caused the alleged harm DoD liability proportionate to harm attributable to DoD health care providers; use of final DoD or VA
disability determinations if applicable;
calculating economic damages principally actual and future health care costs, costs associated with long term care and disability, and loss of future earnings; determining noneconomic damages including pain and suffering, up to a capped amount; and initial decision and administrative appeal procedures a single DoD appeals board decides appeals on the written record as a whole. More detailed information is below.

Based on section 731 of the NDAA, this rule adds to Title 32 of the Code of Federal Regulations a new part 45, Medical Malpractice Claims by Members of the Uniformed Services.
Title 10 U.S.C. 2733af2Aii describes the claims process, which includes: The claimants submission of information to initiate a medical malpractice claim; the claimants response to an adjudicators request for new information required to substantiate the claim or to determine damages; an Initial Determination issued by DoD; the opportunity for a claimant to seek reconsideration of damage calculations in the case of clear error; and, in most cases, the
Section 45.1 Purpose Section 45.1 explains the purpose of this part. It establishes the administrative process for adjudication of claims under the new 10 U.S.C.
2733a, which was added to 10 U.S.C. by section 731 of the National Defense Authorization Act for Fiscal Year 2020.
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
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member is absent without leave or the injury is due to the members 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 45.1 also notes that the new medical malpractice claims process is separate from the Military Health System Healthcare Resolutions Program.1 This existing program is an independent, neutral, and confidential system that promotes full disclosure of factual clinical information involving adverse events and outcomes, and mediation of clinical conflicts. The program is part of the Military Health Systems commitment to transparency, which also includes a patients right to be heard as part of any quality assurance review. To the extent a military member or any other health care beneficiary seeks to obtain more information about an adverse clinical event, the Healthcare Resolutions Program continues to be a valuable resource independent of any legal process or claims system.
However, the Healthcare Resolutions Program is not involved with claims or legal matters. Thus, when a patient files a malpractice claim, under 45.1
Healthcare Resolutions Specialists disengage from further patient communications related to the events associated with the claim.
Section 45.2 Claims Payable and Not Payable in General 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. 2733ab4
prescribes the time period for filing claims, state statutes of limitation or repose are inapplicable. Consistent with 10 U.S.C. 2733ag, there is a limitation on the amount of attorneys 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.
1 https health.mil/Reference-Center/Policies/
2019/06/18/Healthcare-Resolutions-DisclosureClinical-Conflict-Management-and-HCP.

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