PART 45—MEDICAL MALPRACTICE CLAIMS BY MEMBERS OF THE UNIFORMED SERVICES Authority: 10 U.S.C. 2733a. Source: 86 FR 32208, June 17, 2021, unless otherwise noted. § 45.1 Purpose of this part. (a) In general. (b) Relationship to military and veterans' compensation programs. e.g., (c) Relationship to Healthcare Resolutions Program. [86 FR 32208, June 17, 2021, as amended at 89 FR 40381, May 10, 2024] § 45.2 Claims payable and not payable in general. (a) In general. (b) Claim not otherwise payable. (c) Time period for filing claims. (2) There is a special rule for claims filed during calendar year 2020. Such claims must be presented to DoD in writing within three years after the claim accrues. The tolling provisions under the Servicemembers Civil Relief Act, 50 U.S.C. 3901-4043, are not applicable under this section. (3) For purposes of applying the time limit for filing a claim, a claim accrues as of the latter of: (i) The date of the act or omission by a DoD health care provider that is the basis of the malpractice claim; or (ii) 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. (4) State statutes of limitation or repose are inapplicable. (d) No claim for attorney's fees or expenses in addition to statutorily allowed amount. (e) Claims adjudication based on national standards. (1) Whether an act or omission by a DoD health care provider in the context of performing medical, dental, or related health care functions was negligent or wrongful, considering the specific facts and circumstances; (2) Whether the personal injury or death of the member was proximately caused by a negligent or wrongful act or omission of a DoD health care provider in the context of performing medical, dental, or related health care functions, considering the specific facts and circumstances; (3) Requirements relating to proof of duty, breach of duty, and causation resulting in compensable injury or loss, subject to such exclusions as may be established by this Part; and (4) Calculation of damages that may be paid. (f) Certain other claims not payable. (1) The due care and discretionary function exceptions apply to claims under this part. (i) The due care and discretionary function exceptions, 28 U.S.C. 2680(a), bar any claim based upon an act or omission of a DoD health care provider, exercising due care, in the execution of a statute or regulation or based upon the exercise or performance of any discretionary function or duty on the part of DoD or a DoD health care provider. (ii) The due care exception applies to any DoD health care provider's act, if carried out with due care, or omission, if omitted with due care, in the execution of a statute or regulation. The due care exception applies whether or not the statute or regulation is valid. (iii) The discretionary function exception applies to the exercise or performance or the failure to exercise or perform any discretionary function. The discretionary function exception applies whether or not the discretion involved was abused. It applies to any DoD health care provider's act or omission that is a permissible exercise of discretion under the applicable statutes, regulations, or directive and, by its nature, is susceptible to policy analysis. The discretionary function exception applies to DoD policy decisions regarding clinical practice, patient triage, force health protection, medical readiness, health promotion, disease prevention, medical screening, health assessment, resource management, hiring and retaining employees, selection of contractors, military standards, fitness for duty, duty limitations, and health information management, among other matters affecting or involving the provision of health care services. (2) The quarantine exception applies to claims under this part. This exception, consistent with 28 U.S.C. 2680(f), bars any claim for damages caused by the imposition or establishment of a quarantine by any agency of the U.S. Government. (3) The combatant activities exception applies to claims under this part. This exception, consistent with 28 U.S.C. 2680(j), bars any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, in time of war. (4) The FTCA's exclusions under 28 U.S.C. 2674 of interest prior to judgment and punitive damages apply to any claim under this part. (5) Claims based on intentional or negligent infliction of emotional distress, other intentional torts, wrongful death/life, strict liability, products liability, informed consent, negligent credentialing, or joint and severable liability theories are not payable under this part. (6) Breach of medical confidentiality is not actionable under this part. § 45.3 Authorized claimants. (a) In general. (1) As provided in section 2733a(b)(1), 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 such member who is deceased or otherwise unable to file the claim due to incapacitation. (2) In some circumstances, a claim otherwise payable under this part may be filed by or on behalf of a reserve component member. As provided in section 2733a(i)(3), those circumstances are that the claim is in connection with personal injury or death that occurred while the member was in a Federal duty status. This circumstance includes personal injury, death, or negligent diagnosis resulting from a negligent or wrongful act or omission that occurred while the member was in a Federal duty status. In the case of a member of the National Guard of the United States, a period of Federal duty status may be under Title 10, U.S. Code, or, based on 10 U.S.C. 12602, duty under title 32, U.S. Code. Other duty under State control is not covered. (b) Third party claims not allowed. (c) Incident to service requirement. § 45.4 Filing a claim. (a) In general. (b) Contents of the claim. (1) The factual basis for the claim, including identification of the conduct allegedly constituting malpractice ( e.g., (2) A demand for a specified dollar amount; (3) If the claim is filed by an attorney, an affidavit from the claimant affirming the attorney's authority to file the claim on behalf of the claimant; (4) 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; (5) If the claimant is not represented by an attorney, 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 health care provider breached the standard of care that caused the alleged harm. (c) Additional information to file in support of claim. (d) Substantiating the claim. (e) No discovery. [86 FR 32208, June 17, 2021, as amended at 87 FR 52462, Aug. 26, 2022] § 45.5 Elements of payable claim: facilities and providers. (a) In general. (b) Covered MTF. (2) A claim may not be based on health care services provided by DoD health care providers in any other location, such as in the field, battalion aid stations, ships, planes, deployed settings, or in any other place that is not a covered MTF. (c) DoD health care provider. (d) Scope of employment. § 45.6 Element of payable claim: negligent or wrongful act or omission. (a) In general. (b) Standard of care. (c) Breach of the standard of care. (d) Presenting evidence of the standard of care. (e) Presenting evidence of a failure to meet the standard of care. (2) Evidence of an apology by a health care provider or any other DoD or Military Department personnel, such as hospital directors or commanders, to or regarding a patient will not be considered evidence of medical malpractice. Providers often apologize for unexpected or adverse outcomes independent of whether the provider's acts or omissions met the standard of care. (f) Information DoD will consider in assessing whether there was a negligent or wrongful act or omission. (2) DoD will consider medical quality assurance records relevant to the health care provided to the patient. DoD's Clinical Quality Management Program features reviews of many circumstances of clinical care. Results of any such reviews of the care involved in the claim that occurred before or after the claim was filed may be considered by DoD in the adjudication of the claim. 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. § 45.7 Element of payable claim: proximate cause. (a) In general. (2) Under section 2733a(c)(1), DoD is liable for only the portion of compensable injury, loss, or damages attributable to the medical malpractice of a DoD health care provider. 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 cause(s). (b) Comparative negligence. (c) Loss of chance or failure to diagnose. (d) Information DoD will consider in assessing proximate cause. (2) DoD may consider medical quality assurance records relevant to the health care provided to the patient. DoD's Clinical Quality Management Program features reviews of many circumstances of clinical care. Results of any such reviews of the care involved in the claim that occurred before or after the claim was filed may be considered by DoD in the adjudication of the claim. 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. [86 FR 32208, June 17, 2021, as amended at 87 FR 52462, Aug. 26, 2022] § 45.8 Calculation of damages: disability rating. (a) In general. 1 1 https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133218p.pdf?ver=2018-05-24-133105-050. (b) Disability rating procedures. (2) In any case in which a member has filed a claim under this part and also has a disability determination pending under DoD or VA disability evaluation or claims processes applicable to determinations or appeals, DoD may, in its discretion, hold in abeyance the claim under this part pending the outcome of the disability evaluation or claims process. DoD will notify the claimant that his or her claim is being held in abeyance. (3) In any case in which a member has not yet received a DoD or VA disability evaluation because the member is retained on active duty, DoD will use the VASRD as the standard for assessing the degree of disability of the member relevant to the member's claim under this part. § 45.9 Calculation of damages: economic damages. (a) In general. (b) Elements of economic damages in personal injury cases. (1) Past expenses, including medical, hospital, and related expenses actually incurred. These expenses do not include health care services provided or paid for by DoD or VA. (2) Future medical, hospital, and related expenses. These expenses do not include health care goods and services for which the member is entitled to receive from, or be reimbursed for by, DoD (including TRICARE) or VA. Goods and services provided or paid for by DoD or VA are deemed sufficient to meet the claimant's needs for that particular type of good or service. (3) Past lost earnings unrelated to compensation as a member of the uniformed services. Appropriate documentation is required. (4) For future lost earnings: (i) Until DoD determines that the claimant is, or is expected to be, medically rehabilitated and able to resume employment; (ii) In cases of permanent incapacitation, until expiration of the claimant's work-life expectancy; or (iii) In cases of death, until the expiration of the claimant's work-life expectancy, after deducting for the claimant's personal consumption. (iv) Future lost earnings must be substantiated by appropriate documentation and claimants have an obligation to mitigate damages. (v) In addition, loss of retirement benefits is compensable and similarly discounted after appropriate deductions. Estimates for future lost earnings and retirement benefits must be discounted to present value. (5) Compensation when the claimant can no longer perform essential household services on his or her own behalf, including activities of daily living. This compensation does not include goods and services the member is entitled to receive from, or be reimbursed for by, DoD or VA. Goods and services provided or paid for by DoD or VA are deemed sufficient to meet the claimant's needs for that particular type of good or service. (c) Information DoD will consider in calculating economic damages. (d) Disability discrimination. [86 FR 32208, June 17, 2021, as amended at 89 FR 40381, May 10, 2024] § 45.10 Calculation of damages: non-economic damages. (a) In general. (b) Elements of non-economic damages. (c) Cap on non-economic damages. Federal Register Federal Register (d) Information DoD will consider in calculating non-economic damages. [86 FR 32208, June 17, 2021, as amended at 87 FR 52462, Aug. 26, 2022; 89 FR 40382, May 10, 2024] § 45.11 Calculation of damages: offsets for DoD and VA Government compensation. (a) In general. (b) Eligibility for payments and benefits. (c) Present value of future payments and benefits. (d) Information considered. (e) Benefits and payments that may be considered as potential offsets. (1) The following DoD and VA payments and benefits are primarily funded from Government appropriations and will be offset: (i) Disability retired pay in the case of retirement due to the disability caused by the alleged medical malpractice; (ii) Disability severance pay in the case of non-retirement disability separation caused by the alleged medical malpractice. (iii) Incapacitation pay. (iv) Involuntary and voluntary separation pays and incentives. (v) Death gratuity. (vi) Housing allowance continuation. (vii) Survivor Benefit Plan. (viii) VA disability compensation, to include Special Monthly Compensation, attributable to the disability resulting from the malpractice. (ix) VA Dependency and Indemnity Compensation, attributable to the disability resulting from the malpractice. (x) Special Survivor Indemnity Allowance. (xi) Special Compensation for Assistance with Activities of Daily Living. (xii) Program of Comprehensive Assistance for Family Caregivers. (xiii) Fry Scholarship. (xiv) TRICARE coverage, including TRICARE-for-Life, for a disability retiree, family, or survivors. Future TRICARE coverage is part of the Government's compensation package for a disability retiree or survivor. (2) The following U.S. Government payments and benefits are substantially funded by the military members or are otherwise generally not eligible for consideration as potential offsets: (i) Servicemembers Group Life Insurance. (ii) Traumatic Servicemembers Group Life Insurance. (iii) Social Security disability benefits. (iv) Social Security survivor benefits. (v) Prior Government contributions to a Thrift Savings Plan. (vi) Commissary, exchange, and morale, welfare, and recreation facility access. (vii) Value of legal assistance and other services provided by DoD. (viii) Medical care provided while in active service or in an active status prior to death, retirement, or separation. [86 FR 32208, June 17, 2021; 86 FR 33885, June 28, 2021, as amended at 87 FR 52462, Aug. 26, 2022; 89 FR 40382, May 10, 2024] § 45.12 Initial and Final Determinations. (a) Denial of claim—deficient filing. (1) DoD will provide the claimant 90 calendar days following receipt of the Initial Determination to cure the deficiency, unless an extension of time is granted for good cause by the DoD Component which issued the Initial Determination. The date of receipt of the Initial Determination will be presumed to be seven calendar days after the date the Initial Determination was mailed or emailed, unless there is evidence to the contrary. (2) If the claimant does not timely cure the deficiency, DoD will issue a Final Determination denying the claim for failure to cure the deficiency. A Final Determination issued under paragraph (a) of this section may not be appealed. (b) Denial of claim—failure to state a claim. (c) Denial of claim—absence of an expert report. (1) DoD will provide the claimant 90 calendar days following receipt of the Initial Determination by the claimant or, if the claimant is represented, by the claimant's representative, to submit an expert report, unless an extension of time is granted for good cause. The date of receipt of the Initial Determination will be presumed to be seven calendar days after the date the Initial Determination was mailed or emailed, unless there is evidence to the contrary. (2) If the claimant does not timely submit an expert report, DoD will issue a Final Determination denying the claim. A Final Determination issued under this paragraph (c) may not be appealed. (d) Initial Determination. (2) The Initial Determination may be in the form of a certified letter and/or an email. The Initial Determination may take the form of a grant of a claim and an offer of settlement or a denial of the claim. Subject to applicable confidentiality requirements, such as 10 U.S.C. 1102, privileged information, and paragraph (a) of this section, DoD will provide a meaningful basis for an offer of settlement or will provide a meaningful explanation for the denial of a claim that includes the specific basis for the denial. (3) The Initial Determination will include information on the claimant's right to appeal if the claimant does not agree with the Initial Determination. (4) The claimant may request reconsideration of the damages calculation contained in an Initial Determination if, within the time otherwise allowed to file an administrative appeal, the claimant identifies an alleged clear error—a definite and firm conviction that a mistake has been committed—in the damages calculation. The DoD Component that issued the Initial Determination will review the alleged clear error and will issue an Initial Determination on Reconsideration either granting or denying reconsideration of the Initial Determination and adjusting the damages calculation, if appropriate. The Initial Determination on Reconsideration will include information on the claimant's right to appeal under the procedures in § 45.13. [86 FR 32208, June 17, 2021, as amended at 87 FR 52463, Aug. 26, 2022] § 45.13 Appeals. (a) In general. (b) Appeals Board. (c) Burden of proof. (d) Appeals Board decisions. (2) An Appeals Board decision is final and conclusive. 10 U.S.C. 2735. (3) The Appeals Board may reverse the Initial Determination to grant or deny a claim and may adjust the settlement amount contained in the Initial Determination either upwards or downwards as appropriate. [86 FR 32208, June 17, 2021, as amended at 87 FR 52463, Aug. 26, 2022] § 45.14 Final and conclusive resolution. (a) Administrative adjudication final. (b) Additional terms of settlement agreement. (2) Because settlement and payment of a claim under this part is under section 2733a(b)(5) conditional on the claim not being allowed to be settled and paid under any other provision of law, a settlement agreement under this part will include a provision that it bars any other claim against the United States or DoD health care providers arising from the same set of facts. § 45.15 Other claims procedures and administrative matters. (a) Payment of damages. (b) Communication through counsel. (c) Remedies for filing false claims or making false statements. (d) Reports to the Defense Health Agency. (e) Monitoring claims adjudications under this part. (f) Authority for actions under this part. [86 FR 32208, June 17, 2021, as amended at 87 FR 52463, Aug. 26, 2022]