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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations death or disability incurred in military service. This system applies to all causes of death or disability incurred in service, whether due to combat injuries, training mishaps, motor vehicle accidents, naturally occurring illnesses, household events, with limited exceptions e.g., when the member is absent without leave or the injury is due to the members intentional misconduct or willful negligence. This comprehensive compensation system applies to cases of personal injury or death caused by medical malpractice incurred in service as it does to all other causes. This part provides for the possibility of separate compensation in certain cases of medical malpractice but in no other type of case. A medical malpractice claim under this part will have no effect on any other compensation the member or family is entitled to under the comprehensive compensation system applicable to all members. However, a claimant under this part does not receive duplicate compensation for the same harm. Thus, with some limited exceptions, a potential malpractice damages award under this part is reduced or offset by the total value of the compensation the claimant is expected to receive under the comprehensive compensation system, whether or not the claimant ultimately receives such compensation, and the ultimate amount of a settlement under this part will be the amount, if any, that a potential malpractice damages award determined under the terms and conditions of this part exceeds the value of all the compensation and benefits the claimant is otherwise expected to receive from DoD or the Department of Veterans Affairs VA.
c Relationship to Healthcare Resolutions Program. The medical malpractice claims process under this part is separate from the Military Health System Healthcare Resolutions Program.
The Healthcare Resolutions Program, under Defense Health Agency Procedural Instruction 6025.17, is an independent, neutral, and confidential system that promotes full disclosure of factual informationincluding information involving adverse events and outcomesand 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 of care provided. The Healthcare Resolutions Program is not involved in legal proceedings, compensation matters, or the adjudication of claims under this part. However, any member
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of the uniformed services may engage the Healthcare Resolutions Program to address non-monetary aspects of his or her belief that he or she has been harmed by medical malpractice by a DoD health care provider. Because it is not involved in claims or legal proceedings, the Healthcare Resolutions Program disengages when a claim is filed by a service member or his or her representative.
45.2 Claims payable and not payable in general.

a In general. This section sets forth a number of terms and conditions included in the statute 10 U.S.C. 2733a that describe claims that are payable and not payable. Some of these terms and conditions are discussed in more detail in later sections of this part.
b Claim not otherwise payable. As required by the statute section 2733ab5, a claim under this Part may only be paid if it is not allowed to be settled and paid under any other provision of law. This limitation provides that it cannot be a claim allowed under the Federal Tort Claims Act FTCA, 28 U.S.C. 1346 and Chapter 171. Claims against the United States filed by members of the uniformed services or their representatives for personal injury or death incident to service are not allowed under the FTCA.
These claims may be allowed under this Part if they meet the other applicable terms and conditions.
c Time period for filing claims. 1
The statute section 2733ab4
requires that a claim must be received by DoD in writing within two years after the claim accrues. For mailed claims, timeliness of receipt will be determined by the postmark.
2 There is a special rule for claims filed during calendar year 2020. Such claims must be presented to DoD in writing within three years after the claim accrues. The tolling provisions under the Servicemembers Civil Relief Act, 50 U.S.C. 39014043, are not applicable under this section.
3 For purposes of applying the time limit for filing a claim, a claim accrues as of the latter of:
i The date of the act or omission by a DoD health care provider that is the basis of the malpractice claim; or ii The date on which the claimant knew, or with the exercise of reasonable diligence should have known, of the injury and that malpractice was its possible cause.
4 State statutes of limitation or repose are inapplicable.
d No claim for attorneys fees or expenses in addition to statutorily allowed amount. In calculating the
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amount that may be paid under this part, consistent with section 2733ac2, there is no additional amount permitted for attorneys fees or expenses associated with filing a claim or participating in any process relating to the adjudication of the claim. The adjudication of claims under this part is not an adversarial proceeding and there is no prevailing party to be awarded costs.
e Claims adjudication based on national standards. As required by the statute section 2733af2B, claims are adjudicated based on national standards consistent with generally accepted standards used in a majority of States in adjudicating claims under the FTCA. The determination of the applicable law is without regard to the place of occurrence of the alleged medical malpractice giving rise to the claim or the military or executive department or service of the member of the uniformed services. Foreign law has no role in the case of claims arising in foreign countries. The legal standards set forth in other sections of this part apply to determinations with respect to:
1 Whether an act or omission by a DoD health care provider in the context of performing medical, dental, or related health care functions was negligent or wrongful, considering the specific facts and circumstances;
2 Whether the personal injury or death of the member was proximately caused by a negligent or wrongful act or omission of a DoD health care provider in the context of performing medical, dental, or related health care functions, considering the specific facts and circumstances;
3 Requirements relating to proof of duty, breach of duty, and causation resulting in compensable injury or loss, subject to such exclusions as may be established by this Part; and 4 Calculation of damages that may be paid.
f Certain other claims not payable.
The generally accepted legal standards under FTCA that are required to be reflected in the adjudication of claims under this Part include certain exclusions that are part of FTCA law.
1 The due care and discretionary function exceptions apply to claims under this part.
i The due care and discretionary function exceptions, 28 U.S.C. 2680a, bar any claim based upon an act or omission of a DoD health care provider, exercising due care, in the execution of a statute or regulation or based upon the exercise or performance of any discretionary function or duty on the part of DoD or a DoD health care provider.

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