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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
be reduced by that proportion of the alternative causes.
b Comparative negligence. A rule of modified comparative negligence will apply to claims under this part. If a claimant was contributorily negligent in relation to the health care provided, damages will be reduced by the proportion of fault assigned to the Service member. If the claimants own negligence constituted more than 50%
of the fault, the claim is not payable.
c Loss of chance or failure to diagnose. A claimant may recover for loss of chance for a more favorable clinical outcome in the diagnosis and treatment of his or her illness or injury.
The claimant must prove by a preponderance of the evidence that one or more DoD health care providers in a covered MTF acting within the scope of employment had a professional duty to the claimant and by act or omission breached that duty and proximately caused harm. In proving that the claimant suffered harm, the claimant must prove that the lost chance for a better outcome or the failure to diagnose a condition is attributable to the provider or providers. The claimant must prove a substantial loss as opposed to a theoretical or de minimis loss. The portion of harm attributable to the breach of duty will be the percentage of chance lost in proportion to the overall clinical outcome. Damages will be calculated based on this portion of harm.
d Information DoD will consider in assessing proximate cause. 1 In addition to the information submitted by the claimant, DoD may consider all relevant information in DoD records or information systems or otherwise available to DoD, including information prepared by or on behalf of DoD in connection with adjudication of the claim.
2 DoD will consider medical quality assurance records relevant to the health care provided to the patient. DoDs Clinical Quality Management Program features reviews of many circumstances of clinical care. Results of any such reviews of the care involved in the claim that occurred before or after the claim was filed may be considered by DoD in the adjudication of the claim. As required by 10 U.S.C. 1102, DoD
medical quality assurance records are confidential. While such records may be used by DoD, any information contained in or derived from such records may not be disclosed to the claimant.
45.8 Calculation of damages: disability rating.

a In general. For certain purposes relating to calculating damages for a
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member in a claim under this part, DoD
will use the disability rating established in the DoD Disability Evaluation System under DoD Instruction 1332.18 1 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. This rating is stated as a disability percentage under the VA
Schedule for Rating Disabilities VASRD under 38 CFR part 4 or a successor provision. Under 10 U.S.C.
1216a, DoD is required to use the VASRD for assessing the degree of disability of a member under the Disability Evaluation System. DoD will use it for purposes of this part as well.
A VASRD-based disability percentage represents the Governments estimate of the lost earning capacity attributable to an illness or injury incurred during military service. A Service member medically separated or retired through the Disability Evaluation System may receive distinct DoD and VA disability ratings. DoD will consider disability ratings, to the extent DoD deems pertinent, for other purposes relating to calculating damages, such as calculating loss of earning capacity and noneconomic damages.
b Disability rating procedures. 1 If a claimant disagrees with the disability rating received in the DoD or VA
disability evaluation or claims processes, the member must pursue the appeal opportunities available within the DoD and/or VA to change the members disability rating.
2 In any case in which a member has filed a claim under this part and also has a disability determination pending under DoD or VA disability evaluation or claims processes applicable to determinations or appeals, DoD may, in its discretion, hold in abeyance the claim under this part pending the outcome of the disability evaluation or claims process. DoD will notify the claimant that his or her claim is being held in abeyance.
3 In any case in which a member has not yet received a DoD or VA disability evaluation because the member is retained on active duty, DoD will use the VASRD as the standard for assessing the degree of disability of the member relevant to the members claim under this part.
45.9 Calculation of damages: economic damages.

a In general. Economic damages are one component of a potential damages 1 Available at https www.esd.whs.mil/Portals/
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award. The claimant has the burden to prove the amount of economic damages by a preponderance of evidence.
Estimates of future losses must be discounted to present value.
b Elements of economic damages in personal injury cases. Elements of economic damage are limited to the following:
1 Past expenses, including medical, hospital, and related expenses actually incurred. These expenses do not include health care services provided or paid for by DoD or VA.
2 Future medical, hospital, and related expenses. These expenses do not include health care goods and services for which the member is entitled to receive from, or be reimbursed for by, DoD including TRICARE or VA. Goods and services provided or paid for by DoD or VA are deemed sufficient to meet the claimants needs for that particular type of good or service.
3 Past lost earnings unrelated to compensation as a member of the uniformed services. Appropriate documentation is required.
4 Loss of earning capacity, after deducting for the claimants personal consumption from the date of injury causing death until expiration of the claimants work-life expectancy, as substantiated by appropriate documentation. In addition, loss of retirement benefits is compensable and similarly discounted after appropriate deductions. Estimates must be discounted to present value.
5 Compensation when the claimant can no longer perform essential household services on his or her own behalf, including activities of daily living. This compensation does not include goods and services the member is entitled to receive from, or be reimbursed for by, DoD or VA. Goods and services provided or paid for by DoD or VA are deemed sufficient to meet the claimants needs for that particular type of good or service.
c Information DoD will consider in calculating economic damages. In addition to the information submitted by the claimant, DoD may consider all relevant information in DoD records or information systems or otherwise available to DoD, including assessments from appropriate documentary sources and experts available to DoD.
45.10 Calculation of damages: noneconomic damages.

a In general. Non-economic damages are one component of a potential damages award. The claimant has the burden of proof on the amount of noneconomic damages by a preponderance of evidence.

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