Part 1 - New Rules Released for Service Members Seeking to File a Medical Malpractice Claim

Posted by Patrick J. Hughes | Jun 30, 2021

Prior to January 1, 2020, service members were unable to file a medical malpractice claim against a Department of Defense (DoD) healthcare provider. However, on January 1, 2020 10 U.S.C.S 2733a went into effect providing a pathway for service members to seek relief after suffering an injury due to the negligence of a DoD healthcare provider. Just last week, June 17, 2021, the DoD issued interim regulations for filing such a claim. These regulations will go into effect July 19, 2021. If you have suffered injury due to medical malpractice in a military medical treatment facility, here is what you need to know about filing a claim.

Time to File. The claim must be filed within two years of the injury.

What to File. Claims must include:

  1. A factual basis for the claim identifying the conduct that constituted malpractice;
  2. A demand for a specified dollar amount;
  3. The signature of the claimant;
  4. If the claim is field by an attorney, the claimant must include an affidavit affirming the attorney is authorized to file the claim on behalf of the claimant;
  5. If the claim is filed by an authorized representative of the service member, the representative must provide an affidavit affirming his or her authority to file on the claimant's behalf; and
  6. Unless the alleged malpractice is within the general knowledge and experience of a lay person, such as a surgeon leaving a scalpel in a patient's stomach, the claimant, or the claimant's attorney, must provide an affidavit affirming that the claimant or attorney consulted with a health care professional who opined that a DoD health care provider breached the standard of care and caused the alleged harm.

Claimants may file whatever other documentation they feel may help to make their case. While the regulations do not require an expert opinion, it is recommended and will heighten the chances of a successful claim. Further, the DoD may require that claimants provide additional information that it believes is necessary for the adjudication of the claim, which could include an expert opinion if not already obtained. In the same vein, the DoD may request that claimants provide their medical records and a statement indicating that the records are complete. The DoD may also request the claimant provide a medical release enabling the DoD to obtain the claimants medical records. It is our recommendation that medical records from three years predating the injury through present day are provided as part of the package, to demonstrate: i) that there was no other reason for the cause of the injury; and ii) the aftermath of care necessary following the injury.

Covered Healthcare Providers. Claims under this title may only be brought when the allegedly negligent health care occurred in a military medical treatment facility and was provided by a DoD healthcare provider. A claim may not be brought when the health care was provided by a DoD healthcare provider, but not within a military medical treatment facility.

Standard of Care. A medical malpractice suit can only be brought if the healthcare provider breached a standard of care and this breach resulted in the injury. The applicable standard of care in these cases is that 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.” 86 Fed. Reg. 32194 45.6 (proposed June 17, 2021) (to be codified at 32 C.F.R. pt. 45).

Calculation of Damages. In calculating the amount of damages to be paid to the claimant, the DoD will consider:

  1. Any Disability Rating, established by the DoD Disability Evaluation System or the Department of Veterans Affairs.
  2. Economic Damages such as medical, hospital, and related expenses that have been incurred in addition to projected future medical expenses, lost earnings, loss of earning capacity, and compensation to be paid to another for essential household services and daily living activities that the service member can no longer provide.
  3. Non-economic Damages such as pain and suffering, physical disfigurement, and the loss of enjoyment of life. Non-economic damages are capped at $500,000.

Initial and Final Determinations. If the claim does not contain all the information required by the DoD, the DoD will issue an Initial Determination that the DoD will deny the claim unless the information is provided within 30 calendar days of the Initial Determination. If upon reviewing the claim, the DoD decides that it will require an expert opinion, the DoD will provide the claimant 90 calendar days to provide an expert report. If Claimants do not supply the requested information within the time period provided, the DoD will issue a Final Determination, which may not be appealed. If a claimant wishes to appeal an Initial Determination, the claimant must file the appeal within 60 calendar days of the Initial Determination.

Where to File the Claim. Claims should be submitted to your Military Department.

Army. Claims should be presented to the nearest Office of the Staff Judge Advocate, to the Center Judge Advocate of the Medical Center in question, or with US Army Claims Service, 4411 Llewellyn Avenue, Fort Meade, Maryland 20755, ATTN: Tort Claims Division.

Navy. Information, directions and forms may be found at Claims should be mailed to the Office of the Judge Advocate General, Tort Claims Unit, 9620 Maryland Avenue, Suite 205, Norfolk, Virginia 23511-2949.

Air Force. Claims should be presented either at the Office of the Staff Judge Advocate at the nearest Air Force Base, or sent by mail to AFLOA/JACC, 1500 W. Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762. POC: Medical Law Branch, AFLOA/JACC 240-612-4620 or DSN 612-4620.

About the Author

Patrick J. Hughes

“The only way to truly advocate for your clients is to know and understand them and their issue. Being a part of the same family, I can think of no better community of people I would rather represent than current and former DoD members and their families.” – Patrick J. Hughes