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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
ii The due care exception applies to any DoD health care providers act, if carried out with due care, or omission, if omitted with due care, in the execution of a statute or regulation. The due care exception applies whether or not the statute or regulation is valid.
iii The discretionary function exception applies to the exercise or performance or the failure to exercise or perform any discretionary function. The discretionary function exception applies whether or not the discretion involved was abused. It applies to any DoD health care providers act or omission that is a permissible exercise of discretion under the applicable statutes, regulations, or directive and, by its nature, is susceptible to policy analysis. The discretionary function exception applies to DoD policy decisions regarding clinical practice, patient triage, force health protection, medical readiness, health promotion, disease prevention, medical screening, health assessment, resource management, hiring and retaining employees, selection of contractors, military standards, fitness for duty, duty limitations, and health information management, among other matters affecting or involving the provision of health care services.
2 The quarantine exception applies to claims under this part. This exception, consistent with 28 U.S.C.
2680f, bars any claim for damages caused by the imposition or establishment of a quarantine by any agency of the U.S. Government.
3 The combatant activities exception applies to claims under this part. This exception, consistent with 28 U.S.C.
2680j, bars any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, in time of war.
4 The FTCAs exclusions under 28
U.S.C. 2674 of interest prior to judgment and punitive damages apply to any claim under this part.
5 Claims based on intentional or negligent infliction of emotional distress, other intentional torts, wrongful death/life, strict liability, products liability, informed consent, negligent credentialing, or joint and severable liability theories are not payable under this part.
6 Breach of medical confidentiality is not actionable under this part.

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45.3

Authorized claimants.

a In general. This section describes who may file a claim under this part. A
claim may be filed only by a member of a uniformed service or an authorized representative on behalf of a member who is deceased or otherwise unable to file the claim due to incapacitation. A

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member of the uniformed services includes a cadet or midshipman from the military academies. It does not include an applicant to join a uniformed service or a delayed entry program recruit who has not been accessed into active duty.
1 As provided in section 2733ab1, 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 such member who is deceased or otherwise unable to file the claim due to incapacitation.
2 In some circumstances, a claim otherwise payable under this part may be filed by or on behalf of a reserve component member. As provided in section 2733ai3, those circumstances are that the claim is in connection with personal injury or death that occurred while the member was in a Federal duty status. This circumstance includes personal injury, death, or negligent diagnosis resulting from a negligent or wrongful act or omission that occurred while the member was in a Federal duty status. In the case of a member of the National Guard of the United States, a period of Federal duty status may be under Title 10, U.S. Code, or, based on 10 U.S.C. 12602, duty under title 32, U.S. Code. Other duty under State control is not covered.
b Third party claims not allowed.
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. This prohibition includes claims by family members or survivors arising out of the circumstances of personal injury or death of a member.
c Incident to service requirement.
Under section 2733aa, the members personal injury or death must be incident to service. An injury or death is incident to service if the medical care provided is based on the members status under this section.
45.4

Filing a claim.

a In general. A member of a uniformed service or, when applicable, an authorized representative may file a claim in writing. Any written claim will suffice as long as it is meets the requirements below and is signed by the claimant or authorized representative.
b Contents of the claim. The filed claim must include the following:
1 The factual basis for the claim, including identification of the conduct allegedly constituting malpractice e.g.,
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the theory of liability and/or breach of the applicable standard of care;
2 A demand for a specified dollar amount;
3 If the claim is filed by an attorney, an affidavit from the claimant affirming the attorneys authority to file the claim on behalf of the claimant;
4 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;
5 If the claimant is not represented by an attorney, 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 claimant must submit an affidavit from the attorney affirming that the attorney consulted with a health care professional who opined that a DoD
health care provider breached the standard of care that caused the alleged harm. The requirement in this paragraph does not apply to claims filed prior to the publication of this Interim Final Rule.
c Additional information to file in support of claim. In the investigation and adjudication of a claim, DoD will access pertinent DoD records and information systems regarding the member in order to consider fully all facts that have a bearing on the claim.
This collection may include information in personnel and medical records, the Defense Eligibility and Enrollment System DEERS, reports of investigation, medical quality assurance records, and other information. Upon DoDs request, a claimant must identify any pertinent health care providers outside of DoD, and provide a copy of his or her medical records from each of the identified health care providers, including a statement that the records are complete. A claimant must provide medical releases upon DoDs request, enabling DoD to obtain medical records from these health care providers.
Claimants may submit any other relevant information they believe supports their claim, such as information regarding the medical care involved, the acts or omissions the claimant believes constitute malpractice, medical opinions from
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