Effective September 26, 2022, active duty military personnel may bring medical malpractice claims against Department of Defense [“DoD”] health care providers. This is a new and welcome exception to the long-standing Feres Doctrine that has prohibited such claims since 1950. The DoD has created an administrative claims process that is similar in many aspects to the process established under the Federal Tort Claims Act for non-military personnel but it has some very important differences. Here are a few excerpts from the Final Rule posted in the Federal Register. The original document can be downloaded by clicking here.
Statute of Limitations/Discovery Rule:
“Title 10 U.S.C. 2733a(b)(2) requires claims to be presented to the Department in writing within two years after the claim accrues. A claim accrues as of the latter of the date of the act or omission by a DoD health care provider that is the basis of the malpractice claim; or the date on which the claimant knew, or with the exercise of reasonable diligence should have known, of the injury and that malpractice was its possible cause.
“Title 10 U.S.C. 2733a(b)(1) only authorizes claims by members of the uniformed services, including claims by the representative of a deceased member of the uniformed services.”
Regarding Derivative Claims:
“Members of the uniformed services and their representatives are subject to the requirements of Title 10 U.S.C. 2733a(b)(1). Thus, the final regulation does not permit derivative claims by family members or other claims from third parties alleging a separate injury such as loss of consortium as a result of harm to a member of the uniformed services. Family members of uniformed service members who believe they have been subjected to malpractice themselves may bring malpractice claims under different statutory provisions—either the FTCA or, if outside the United States, under the MCA.
Active Duty Requirement:
“Title 10 U.S.C. 2733a(i)(3) requires the personal injury or death to have occurred in Federal status for the claim to be allowed under this provision. It does not include applicants or recruits who have not yet been accessed into active duty.
“Title 10 U.S.C. 2733a(b)(3) requires the act or omission constituting malpractice to have occurred in a covered military medical treatment facility. Title 10 U.S.C. 2733a(i)(1) defines “covered military medical treatment facility” as a facility described in 10 U.S.C. 1073d. These facilities are medical centers, hospitals, and ambulatory care centers.
“DoD would determine whether health care providers were acting in furtherance of their duties in the military medical treatment facility. Title 10 U.S.C. Section 1094(d) mandates that, notwithstanding any State law regarding the licensure of health care providers, designated licensed individual providers may practice their profession in any location in any jurisdiction of the United States, regardless of where the provider or patient is located, so long as the practice is within the scope of the provider's authorized federal duties. This includes telemedicine providers.
Regarding Lost Chance/Failure to Diagnose claims:
“The rule states that the portion of harm attributable to the breach of duty will be the percentage of chance lost in proportion to the overall clinical outcome and that damages will be calculated based on this portion of harm. Including more detail would be neither feasible nor appropriate.
Regarding damages and disability ratings:
“Disability ratings and compensation are useful for purposes of assessing the extent of the harm caused by the medical malpractice and in determining lost earning capacity. DoD will only use these ratings if they are useful and pertinent to the element of damages at issue. After more experience in adjudicating claims under this final rule, if it appears that disability ratings are not useful in assessing the extent of harm caused by the medical malpractice and in determining lost earning capacity, DoD will revisit this. DoD will review this rule on a periodic three-year cycle in accordance with departmental retrospective review. Congress gave DoD broad authority to issue regulations to implement the claims process and, if a disability rating and compensation are needed for purposes of assessing damages, holding the claim in abeyance ensures these damages are calculated accurately.
Regarding Non-Economic Damages Cap:
“After considering  comments, DoD increased the cap on non-economic damages to $600,000. Title 10 U.S.C. 2733a(f)(2)(B) requires the regulations prescribed by DoD to adjudicate claims based on uniform national standards consistent with generally accepted standards used in a majority of States in adjudicating claims under the FTCA, 28 U.S.C. 2671 et seq., without regard to the place where the Service member received medical care. This is a different standard from the FTCA. Under the FTCA, 28 U.S.C. 2672 and 28 U.S.C. 1346(b)(1), the law applied is the law of the place where the medical care was provided. A majority of States, 29, have caps on non-economic damages applicable in medical malpractice claims. The median of these caps is approximately $500,000.
“The cap of $600,000 represents DoD's best approximation of the current average of the caps on non-economic damages in medical malpractice cases in those States having caps and it is consistent with the median amount. States have varying formulas for determining caps on non-economic damages and the $600,000 cap takes into account current state law in this regard. Some States periodically increase their non-economic damage caps to account for inflation, and the final rule takes these increases into account and retains the requirement for periodic updates to the cap to account for inflationary increases.
Regarding Claim Deficiencies and Opportunity to Cure:
“The final rule provides 90 days to cure a deficiency instead of 30 days and allows 90 days instead of 60 days to request reconsideration and to appeal. Extending the time to cure a deficiency is consistent with DoD's intent for a claimant-friendly process that provides ample opportunity for Service members or their representatives to provide information in support of their claims and reduces the need for DoD to process requests for extension.
Regarding Expert Reports:
“DoD modified Sections 45.12 and 45.13, adding language to ensure that claimants are provided with a meaningful basis for an offer of settlement or with a meaningful explanation for the denial of a claim that includes the specific basis for the denial. Claimants have ample opportunity to provide any information they wish at the Initial Determination stage. When a claimant initially does not submit an expert report in support of his or her claim and DoD intends to deny the claim, DoD will provide a meaningful explanation for the intent to deny the claim that includes the specific basis for the denial and provides the claimant with an opportunity to submit an expert report. Appellate review limited to the record below is consistent with procedures in many other appellate bodies, such as the Federal courts of appeal.
Additional Noteworthy Comment:
“DoD has established a process which requires very little information to be submitted at the time a claim is filed, with opportunities to submit additional evidence during the Initial Determination phase.
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