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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
A claim under this regulation is payable only if it may not be settled or paid under any other law, including the FTCA per Title 10 U.S.C. 2733ab5.
Claims are adjudicated based on generally accepted standards used in a majority of States in adjudicating claims under the FTCA without regard to the place where the service member received medical care per Title 10
U.S.C. 2733af2B. In adjudicating claims, DoD will make every effort to determine the applicable law adopted by the majority of States at least 26
States.
Certain exclusions that are part of FTCA law apply to claims under this new authority as well. These exclusions include the discretionary function exception, which generally bars any claim challenging a discretionary agency policy. Another FTCA exclusion that is applicable to claims under this part is the combatant activities exception, although only in extremely unusual circumstances such as an attack on a military hospital. It should be noted, however, that the FTCA
exception regarding any claim arising in a foreign country is not applicable to claims under this part. Title 10 U.S.C.
2733af2B refers to such claims as covered by the new authority.

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Section 45.3

Authorized Claimants
Section 45.3 discusses who may file a medical malpractice claim. As provided in the statute, 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 a member who is deceased or otherwise unable to file the claim due to incapacitation per Title 10 U.S.C. 2733ab1. A claim may be filed by or on behalf of a reserve component member if the claim is in connection with personal injury or death occurring while the member was in a Federal duty status. 10 U.S.C.
2733ai3. 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. Additionally, medical malpractice claims from members must be for an injury incident to service per 10 U.S.C. 2733aa. For members on active duty, almost any injury or illness arising out of medical care received at a MTF by a DoD health care provider is considered incident to service. Medical care provided to a service member based on military status is incident to service.

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Section 45.4 Filing a Claim Rules for filing a claim are addressed in 45.4. A member of a uniformed service or, when applicable, an authorized representative, may file a claim. Any written claim will suffice provided that it includes the following:
a The factual basis for the claim, which identifies the conduct allegedly constituting malpractice e.g., theory of liability and/or breach of the applicable standard of care; b a demand for a specified dollar amount; c signed by the claimant or claimants duly authorized agent or legal representative;
d 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; e 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; and f 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 claim must include an affidavit from the attorney affirming that the attorney consulted with a health care professional who opined that a DoD healthcare provider breached the standard of care that caused the alleged harm. This requirement for an affidavit at the time of filing the claim is consistent with the practice in a majority of States to require an expert report, expert affidavit, certification or affidavit of merit, or a similar requirement.
While DoD is not requiring an expert opinion at the time of filing a claim, claimants may submit whatever information and documentation they believe necessary to support their claim, as claimants have the burden to substantiate their claims. As part of the investigation and evaluation of a claim, DoD will access pertinent DoD or other available government information systems and records regarding the member in order to consider fully all facts relevant to the claim. This may include information in personnel records, 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
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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 a medical release or medical releases upon DoDs request, enabling DoD to obtain medical records from the identified health care providers.
DoD may require that the claimant provide additional information DoD
believes is necessary for adjudication of the claim, including the submission of an expert opinion at the claimants expense. If DoD intends to deny a claim in which an expert opinion has not been submitted, prior to denying the claim, DoD will notify the claimant and provide the opportunity for submission of an expert opinion at the claimants expense. DoD may determine an expert opinion is not required when allegations of medical malpractice are within the general knowledge and experience of ordinary laypersons, such as when a foreign object is improperly left in the body or an operation occurred on the wrong body part.
There is no discovery process for adjudication of claims. However, claimants may obtain copies of records in DoDs possession that are part of their personnel and medical records in accordance with DoD Instruction 5400.11, DoD Privacy and Civil Liberties Programs; 2 and DoD
Instruction 6025.18, Health Insurance Portability and Accountability Act HIPAA Privacy Rule Compliance in DoD Health Care Programs. 3 Claimants are not entitled to attorney work product, attorney client privileged communications, material that are medical quality assurance records protected under 10 U.S.C. 1102, predecisional material, or other privileged information.
Section 45.5 Elements of a Payable Claim; Facilities and Providers Section 45.5 covers one of the statutory elements of payable claims, stating that the health care involved occurred in a covered military medical treatment facility by a DoD health care provider acting within the scope of employment. As stated in the statute, the claimed act or omission constituting medical malpractice must have occurred in a DoD medical center, inpatient hospital, or ambulatory care center. A
2 Available at https www.esd.whs.mil/Portals/
54/Documents/DD/issuances/dodi/
540011p.pdf?ver=gM7QU0FeRs8wMwz FXS8uSA%3d%3d.
3 Available at https www.esd.whs.mil/Portals/
54/Documents/DD/issuances/dodi/
602518p.pdf?ver=2019-03-13-125803-017.

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