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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
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claim may not be based on health care services provided by DoD health care providers in any other locations, such as in the field, battalion aid stations, ships, planes, deployed settings, or any other place that is not a covered MTF. With respect to covered DoD health care providers, they include members of the uniformed services, DoD civilian employees, and personal services contractors of the Department authorized by DoD to render health care services. A non-personal services contractor or a volunteer working in an MTF is not a DoD health care provider for purposes of a payable claim. Claims filed in court against non-personal services contractors and volunteers would be analyzed under the Feres doctrine. The DoD health care provider must be acting within the scope of employment, meaning that the provider was acting in furtherance of his or her duties in the MTF. For personal services contractors, scope of employment means the contractor was acting within the scope of his or her duties.
Section 45.6 Element of Payable Claim: Negligent or Wrongful Act or Omission Section 45.6 establishes rules for determining if a providers act or omission was negligent or wrongful. In general, a claimant needs to prove by a preponderance of evidence that a DoD
health care provider in a covered MTF
acting within the scope of employment had a professional duty to the patient involved and by act or omission breached that duty in a manner that proximately caused the harm. The provider must exercise the same degree of skill, care, and knowledge ordinarily expected of providers in the same field or specialty in a comparable clinical setting. The standard of care is determined based on generally recognized national standards, not on the standards of a particular region, State or locality. A claimant may present evidence to support what the claimant believes is the standard of care.
A claimant may present evidence to support the failure of the DoD health care provider to meet the standard of care based on the medical records of the patient and other documentary evidence of the acts or omissions of the health care provider.
In addition to the information submitted by the claimant, DoD may consider all relevant information in DoD
records and information systems or otherwise available to DoD, to include information prepared by or on behalf of DoD in connection with adjudication of the claim. DoD will consider medical quality assurance records relevant to the
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health care provided to the patient. 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.
Section 45.7 Element of Payable Claim: Proximate Cause Rules on determining whether the alleged malpractice was the proximate cause of the harm suffered by the member are the subject of 45.7. In general, a claimant must prove by a preponderance of evidence that a negligent or wrongful act or omission by a DoD health care provider was the proximate cause of the harm suffered by the member. DoD is liable for only the portion of harm that is attributable to the medical malpractice of a DoD health care provider per 10 U.S.C. 2733ac1.
To the extent other causes contributed to the personal injury or death of the member, whether pre-existing, concurrent, or subsequent, the potential amount of compensation under this regulation will be reduced by that proportion of the alternative causes;
however, if the claimants own negligence constituted more than 50%
of the fault, the claim is not payable.
Section 45.8 Calculation of Damages:
Disability Rating Section 45.8 provides rules related to disability ratings and adjudication of these ratings under disability evaluation systems. DoD will use the disability rating established in the DoD Disability Evaluation System under DoD
Instruction 1332.18 4 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. A
VASRD-based disability percentage represents the Governments estimate of the lost earning capacity attributable to an illness or injury incurred during military service.
Section 45.9 Calculation of Damages:
Economic Damages Calculation of economic damages, which are one component of a potential damages award, is the subject of 45.9.
Elements of economic damages in personal injury claims are past expenses, including medical, hospital and related expenses actually incurred, and future medical expenses. Also covered are lost earnings, loss of earning capacity, and compensation paid to a 4 Available at https www.esd.whs.mil/Portals/
54/Documents/DD/issuances/dodi/
133218p.pdf?ver=2018-05-24-133105-050.

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person for essential household services and activities of daily living that the member can no longer provide for himself or herself.
Section 45.10 Calculation of Damages:
Non-Economic Damages Non-economic damages are also covered as outlined in 45.10. Elements of non-economic damages in medical malpractice cases consist of past and future conscious pain and suffering, physical disfigurement, and loss of enjoyment of life. Consistent with the rule of law in a majority of States, total non-economic damages may not exceed a cap amount. Based on the current average cap amount in those States, the total cap amount for all non-economic damages arising from the malpractice is set at $500,000.
Section 45.11 Calculation of Damages:
Offsets for DoD and VA Compensation Section 45.11 provides that in the calculation of damages there is a deduction for compensation paid or expected to be paid by DoD or VA to the service member for the same harm that is caused by the medical malpractice.
Tort damage awards against the U.S. are generally offset by other compensation paid by the U.S. for the same harm that is the subject of a malpractice claim so that the U.S. does not pay more than once for the injury.
This section lists categories of compensation that are included as offsets to potential malpractice damages awards when that compensation relates to harm caused by the act or omission involved, including: Pay and allowances while a member remains on active duty or in an active status; disability retired pay; disability severance pay;
incapacitation pay; involuntary and voluntary separation pays and incentives; death gratuity; housing allowance continuation; Survivor Benefit Plan; VA disability compensation; VA Dependency and Indemnity Compensation; Special Survivor Indemnity Allowance; Special Compensation for Assistance with Activities of Daily Living; Program of Comprehensive Assistance for Family Caregivers; and the Fry Scholarship.
Also included is an offset of the value of TRICARE coverage, including TRICARE-for-Life for a disability retiree, family, or survivors. Future TRICARE
coverage is a major part of the Governments compensation package for a disability retiree or survivor. Potential malpractice awards are not offset by the present value of some payments and benefits for which Service members have made payments or contributions, which would be difficult to quantify,
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