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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
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claim, which is not required. The Department will assume for purposes of this analysis that the same type of professional would be consulted as the professional against whom the malpractice is alleged e.g., a doctor providing an opinion about the standard of care if a doctor is alleged to have committed malpractice. Most medical malpractice claims are brought on a contingent fee basis 13 so there is no initial cost to the claimant. Based on similar claim analysis activity in handing malpractice claims, we estimate an attorney might spend 1726
hours analyzing a claim before filing.
We use BLS data 14 to value time spent by these individuals, and we adjust mean wage rates upward by 100 percent to account for overhead and benefits.
This implies hourly rates of $206.12 for physicians, $76.94 for nurses, and $111.62 for physician assistants, and $143.18 for lawyers. As a result, the estimated cost for medical review would be approximately $231 to $1,855, and the estimated cost for attorney time would be approximately $2,434 to $3,723.
The cost to a Service member or an authorized representative for the filing itself will vary based on the amount of information the Service member includes with his or her filing. A basic letter stating the factual basis for the claim and including a demand for a specified dollar amount would cost the claimant postage $0.55 per claim, or $27.50 for an estimated 50 claims and possibly minimal photocopying.
Claimants will likely choose to use certified mail, requiring additional postage of $3.35 per claim or $167.50
for an estimated 50 claims per year.
Two affidavits are likely required, one containing a statement from the claimant indicating he or she consulted with a health care professional and obtained an opinion from that health care professional that the medical standard of care was breached and one affirming that a representative is authorized to represent the claimant.
Those entitled to legal assistance under 10 U.S.C. 1044 such as Active Duty Service members, retired Service members, and survivors would be able to obtain notarial services at no cost.
Most likely, those filing claims would fall into one of these categories and so could obtain notarial services at no cost.
13 Joanna Shepherd, Uncovering the Silent Victims of the American Medical Liability System, 67 Vanderbilt Law Review 151, 162 2019
Available at: https scholarship.law.
vanderbilt.edu/vlr/vol67/iss1/2.
14 See https www.bls.gov/oes/2020/may/oes_
nat.htm. Note that we use wages for family medical physicians as a proxy for physicians.

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However, this rule results in societal costs associated with these notarial services. We estimate that notarial services will require the equivalent of 20 minutes of paralegal time. Using BLS
data,15 and adjusting upward by 100
percent to account for overhead and benefits to arrive at an hourly rate of $54.44 implies $18.14 in costs per claim. Finally, although not required, a claimant could submit any other information he or she chooses, which would result in a variable cost. DoD
assumes that pertinent medical records outside its system would be fairly recent could be accessed via web portals, resulting in a cost to the claimant of only the cost of printing and postage. If the claimant elects to submit receipts, the claimant would need to pay the cost of printing or photocopying, as well as postage. DoD requests public comment on costs faced by claimants.
In 2020, DoD received 149
malpractice claims filed by Active Duty beneficiaries under the process in this Part and 173 malpractice claims filed by other beneficiaries under either the FTCA or MCA. Section 2733ab4
requires claims to be presented to DoD
within two years after the claim accrues, although section 731 of the Fiscal Year 2020 NDAA allowed claims accruing in 2017 to be filed in 2020. In future years, when three years worth of claim filings are not compressed in the same year and the requirement for consultation with a health care professional in certain circumstances in advance of filing takes effect, DoD would anticipate around 50
claims per year.16 Based on information related to malpractice claims not filed after consideration, we estimate that 90% of the claims considered by individuals and their attorneys will not be filed.17 As a result, we estimate that 500 claims will be considered, and that 50 claims will be filed by Service members per year.
The categories of costs for considered claims are described above. In sum, we estimate costs of $2,822 to $5,735 per claim. This implies total costs of 15 See https www.bls.gov/oes/2020/may/oes_
nat.htm.
16 These are the total number of claims, prior to any analysis of the merits of the claims, or analysis of whether the claims were properly filed e.g., whether the claims were timely. The Congressional Budget Office CBO, when scoring section 731, assumed an additional 50 claims per year would be paid at cost of $600,000 per claim, for a total of $30,000,000 per year or $300,000,000 over 10 years.
These estimates did not appear to take into account offsets so the number of paid claims will be less.
17 Joanna Shepherd, Uncovering the Silent Victims of the American Medical Liability System, 67 Vanderbilt Law Review 151 2019 Available at:
https scholarship.law.vanderbilt.edu/vlr/vol67/
iss1/2.

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$1,401,102 to $2,857,602 each year for considered claims.
Next, we estimate costs associated with processing claims. Many steps in processing a claim will be the same for DoD whether or not the claim has merit.
Based on activity in non-medical malpractice claims, we anticipate 3
hours of paralegal time for activities such as logging in claims, sending acknowledgment letters, mailing certified letters containing the outcome of a claim, drafting vouchers for payment, and filing/data entry.
Assuming a GS11 paralegal at the step 5 salary rate of $81,634 based on the 2020 Washington, DC, locality pay table an hourly rate of $39.12 and the total value of labor including wages, benefits, and overhead being equal to 200 percent of the wage rate, the cost for this paralegal activity per claim is $234.72.
We estimate that the approximately same amount of time that a claimants attorney would spend analyzing a claim 1726 hours of attorney time would be spent by DoD attorneys to analyze the claim, conduct legal research, consult with experts, and draft a determination.
Assuming a GS 13/14 at an average GS
13/14 salary of $127,788 based on the 2020 Washington, DC, locality pay table an hourly rate of $61.23 and the total value of labor including wages, benefits, and overhead being equal to 200 percent of the wage rate, this attorney activity would cost $2,081 to $3,184 per claim.
Of these 50 claims, for purposes of this analysis, based on historical malpractice claims data involving nonService members, we assume 27% of claimants will have claims for which DoD determines malpractice occurred, or 14 claims. For these claims, based on time spent by DoD on the damages portion of current malpractice claims against the government, DoD estimates claimants attorneys and DoD attorneys will spend 68 hours respectively on matters pertaining to damages. This results in a cost per claim of $859 to $1,145 for claimants attorneys and $748
to $997 for DoD attorneys.
Of submitted claims, DoD estimates that claimants will appeal all claims that do not result in a payment of damages, resulting in 36 appeals annually. Note that this is described in more detail in the transfers section. We estimate it will take around the same amount of time spent on initial determination activities for appeal activities, or 1726 hours per claim for both claimants attorneys at a cost of $2,434 to $3,723 and DoD attorneys at a cost of $2,081 to $3,184 and 3 hours per claim by DoD paralegals at a cost of $235. This implies total annual costs of $171,000 to $257,112 for appeals.

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