32194 Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations 

Burn’’ is used to refer to multiple areas 

in the United States. Therefore, wine 

bottlers using ‘‘The Burn,’’ standing 

alone, in a brand name or in another 

label reference on their wines will not 

be affected by the establishment of this 

AVA. 

The establishment of The Burn of 

Columbia Valley AVA will not affect the 

existing Columbia Valley AVA, and any 

bottlers using ‘‘Columbia Valley’’ as an 

appellation of origin or in a brand name 

for wines made from grapes grown 

within the Columbia Valley will not be 

affected by the establishment of this 

new AVA. The establishment of The 

Burn of Columbia Valley AVA will 

allow vintners to use ‘‘The Burn of 

Columbia Valley’’ and ‘‘Columbia 

Valley’’ as appellations of origin for 

wines made primarily from grapes 

grown within The Burn of Columbia 

Valley AVA if the wines meet the 

eligibility requirements for these 

appellations. 

Regulatory Flexibility Act 

TTB certifies that this regulation will 

not have a significant economic impact 

on a substantial number of small 

entities. The regulation imposes no new 

reporting, recordkeeping, or other 

administrative requirement. Any benefit 

derived from the use of an AVA name 

would be the result of a proprietor’s 

efforts and consumer acceptance of 

wines from that area. Therefore, no 

regulatory flexibility analysis is 

required. 

Executive Order 12866 

It has been determined that this final 

rule is not a significant regulatory action 

as defined by Executive Order 12866 of 

September 30, 1993. Therefore, no 

regulatory assessment is required. 

Drafting Information 

Karen A. Thornton of the Regulations 

and Rulings Division drafted this final 

rule. 

List of Subjects in 27 CFR Part 9 

Wine. 

The Regulatory Amendment 

For the reasons discussed in the 

preamble, TTB amends title 27, chapter 

I, part 9, Code of Federal Regulations, as 

follows: 

PART 9—AMERICAN VITICULTURAL 

AREAS 

■ 1. The authority citation for part 9 

continues to read as follows: 

Authority: 27 U.S.C. 205. 

Subpart C—Approved American 

Viticultural Areas 

■ 2. Subpart C is amended by adding 

§ 9.276 to read as follows: 

§ 9.276 The Burn of Columbia Valley. 

(a) Name. The name of the viticultural 

area described in this section is ‘‘The 

Burn of Columbia Valley’’. For purposes 

of part 4 of this chapter, ‘‘The Burn of 

Columbia Valley’’ is a term of 

viticultural significance. 

(b) Approved maps. The four United 

States Geological Survey (USGS) 

1:24,000 scale topographic maps used to 

determine the boundary of The Burn of 

Columbia Valley viticultural area are 

titled: 

(1) Sundale NW, OR–WA, 2017; 

(2) Goodnoe Hills, WA, 2017; 

(3) Dot, WA, 2017; and 

(4) Sundale, WA–OR, 2017. 

(c) Boundary. The Burn of Columbia 

Valley viticultural area is located in 

Klickitat County in Washington. The 

boundary of The Burn of Columbia 

Valley viticultural area is as described 

below: 

(1) The beginning point is on the 

Sundale NW map, at the intersection of 

the Columbia River and the east shore 

of Paterson Slough. From the beginning 

point, proceed northerly along the east 

shore of Paterson Slough to its junction 

with Rock Creek, and continuing 

northeasterly along Rock Creek to its 

intersection with the boundary of the 

Yakima Nation Trust Land; then 

(2) Proceed south, then east, then 

generally northeasterly along the 

boundary of the Yakima Nation Trust 

Land, crossing onto the Goodnoe Hills 

map, to the intersection of the Trust 

Land boundary with Kelley Road; then 

(3) Proceed north in a straight line to 

the intersection with the main channel 

of Chapman Creek; then 

(4) Proceed southeasterly 

(downstream) along Chapman Creek, 

crossing over the Dot map and onto the 

Sundale map, to the intersection of 

Chapman Creek with its southernmost 

tributary; then 

(5) Proceed due east in a straight line 

to the creek running through Old Lady 

Canyon; then 

(6) Proceed southerly along the creek 

to its intersection with the northern 

shoreline of the Columbia River; then 

(7) Proceed westerly along the 

northern shoreline of the Columbia 

River, returning to the beginning point. 

Signed: January 4, 2021. 

Mary G. Ryan, 

Administrator. 

Approved: January 5, 2021. 

Timothy E. Skud, 

Deputy Assistant Secretary (Tax, Trade, and 

Tariff Policy). 

[FR Doc. 2021–12771 Filed 6–16–21; 8:45 am] 

BILLING CODE 4810–31–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 45 

[Docket ID: DOD–2021–OS–0047] 

RIN 0790–AL22 

Medical Malpractice Claims by 

Members of the Uniformed Services 

AGENCY: Department of Defense (DoD) 

Office of General Counsel, DoD. 

ACTION: Interim final rule. 

SUMMARY: This interim final rule 

implements requirements of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year 2020 permitting 

members of the uniformed services or 

their authorized representatives to file 

claims for personal injury or death 

caused by a Department of Defense 

(DoD) health care providers s in certain 

military medical treatment facilities. 

Because Federal courts do not have 

jurisdiction to consider these claims, 

DoD is issuing this rule to provide 

uniform standards and procedures for 

considering and processing these 

actions. 

DATES: This interim final rule is in effect 

July 19, 2021. Comments must be 

received by August 16, 2021. 

ADDRESSES: You may submit comments, 

identified by docket number and/or 

Regulatory Information Number (RIN) 

number and title, by any of the 

following methods: 

• Federal Rulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: The DoD cannot receive 

written comments at this time due to the 

COVID–19 pandemic. Comments should 

be sent electronically to the docket 

listed above. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this Federal 

Register document. The general policy 

for comments and other submissions 

from members of the public is to make 

these submissions available for public 

viewing at http://www.regulations.gov 

as they are received without change, 


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1https://health.mil/Reference-Center/Policies/ 

2019/06/18/Healthcare-Resolutions-DisclosureClinical-Conflict-Management-and-HCP. 

including any personal identifiers or 

contact information. 

FOR FURTHER INFORMATION CONTACT: 

Melissa D. Walters, (703) 681–6027, 

melissa.d.walters.civ@mail.mil. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Signed into law on December 20, 

2019, section 731 of the 2020 NDAA 

allows members of the uniformed 

services or their authorized 

representatives to file claims for 

personal injury or death caused by a 

DoD health care provider in certain 

military medical treatment facilities. 

Historically, members of the armed 

forces have been unable to bring suit 

against the government under the Feres 

doctrine, named for the plaintiff in Feres 

v. United States. Based on this 1950 

Supreme Court decision, active duty 

military personnel may not sue the 

government for personal injuries 

suffered incident to service (generally, 

while on active duty). The 2020 NDAA 

allows Service members, with certain 

limitations, to bring administrative 

claims to seek compensation for 

personal injury or death resulting from 

medical malpractice that occurred in 

certain military medical treatment 

facilities, in addition to compensation 

already received under the 

comprehensive compensation system 

that currently exists for military 

members and their families. 

A substantiated claim under $100,000 

will be paid directly to the member or 

his/her estate by DoD. The Treasury 

Department will review and pay claims 

that the Secretary of Defense values at 

more than $100,000. Service members 

must present a claim that is received by 

DoD within two years after the claim 

accrues. However, the statute allowed 

Service members to file claims in 2020 

for injuries that occurred in 2017. 

II. Legal Authority for This Rule 

Based on section 731 of the NDAA, 

this rule adds to Title 32 of the Code of 

Federal Regulations a new part 45, 

Medical Malpractice Claims by 

Members of the Uniformed Services. 

Title 10 U.S.C. 2733a(f)(2)(A)(ii) 

describes the claims process, which 

includes: The claimant’s submission of 

information to initiate a medical 

malpractice claim; the claimant’s 

response to an adjudicator’s request for 

new information required to 

substantiate the claim or to determine 

damages; an Initial Determination 

issued by DoD; the opportunity for a 

claimant to seek reconsideration of 

damage calculations in the case of clear 

error; and, in most cases, the 

opportunity for a claimant to file an 

administrative appeal. 

Claims will be adjudicated based on 

uniform national standards consistent 

with generally accepted standards used 

in a majority of States in adjudicating 

claims under the Federal Tort Claims 

Act (FTCA), 28 U.S.C. 2671 et seq., 

without regard to the place where the 

Service member received medical care. 

III. Summary of Provisions Contained 

in This Rule 

This rule discusses who may file a 

claim (generally, a member of a 

uniformed service allegedly harmed 

incident to service by malpractice); 

what DoD health care providers may be 

involved (DoD personnel and personal 

services contractors acting within the 

scope of their employment or duties; 

where the malpractice must have 

occurred (in a ‘‘military medical 

treatment facility’’ (MTF) (10 U.S.C. 

1073d); how to file (a written request 

mailed to a Military Department-specific 

address); records DoD will consider 

(submissions presented by claimant and 

any available relevant government 

records and information otherwise 

available to DoD); who has the burden 

of proof (claimant must substantiate the 

claim); how to substantiate a claim; 

deciding what caused the alleged harm 

(DoD liability proportionate to harm 

attributable to DoD health care 

providers); use of final DoD or VA 

disability determinations if applicable; 

calculating economic damages 

(principally actual and future health 

care costs, costs associated with long 

term care and disability, and loss of 

future earnings); determining noneconomic damages (including pain and 

suffering, up to a capped amount); and 

initial decision and administrative 

appeal procedures (a single DoD appeals 

board decides appeals on the written 

record as a whole). More detailed 

information is below. 

Section 45.1 Purpose 

Section 45.1 explains the purpose of 

this part. It establishes the 

administrative process for adjudication 

of claims under the new 10 U.S.C. 

2733a, which was added to 10 U.S.C. by 

section 731 of the National Defense 

Authorization Act for Fiscal Year 2020. 

The current comprehensive 

compensation system that currently 

exists for military members and their 

families, when members are injured or 

die incident to service, applies to all 

causes of death or disability, whether 

due to combat injuries, training 

mishaps, motor vehicle accidents, 

naturally occurring illnesses, with 

limited exceptions (e.g., when the 

member is absent without leave or the 

injury is due to the member’s 

intentional misconduct or willful 

negligence). The new law provides for 

the possibility of additional 

compensation beyond that provided by 

this comprehensive compensation 

system for personal injury or death of a 

military member caused by medical 

malpractice by a DoD health care 

provider in certain circumstances. 

Section 45.1 also notes that the new 

medical malpractice claims process is 

separate from the Military Health 

System Healthcare Resolutions 

Program.1 This existing program is an 

independent, neutral, and confidential 

system that promotes full disclosure of 

factual clinical information involving 

adverse events and outcomes, and 

mediation of clinical conflicts. The 

program is part of the Military Health 

System’s commitment to transparency, 

which also includes a patient’s right to 

be heard as part of any quality assurance 

review. To the extent a military member 

(or any other health care beneficiary) 

seeks to obtain more information about 

an adverse clinical event, the Healthcare 

Resolutions Program continues to be a 

valuable resource independent of any 

legal process or claims system. 

However, the Healthcare Resolutions 

Program is not involved with claims or 

legal matters. Thus, when a patient files 

a malpractice claim, under § 45.1 

Healthcare Resolutions Specialists 

disengage from further patient 

communications related to the events 

associated with the claim. 

Section 45.2 Claims Payable and Not 

Payable in General 

Section 45.2 provides some of the 

terms rendering claims payable and not 

payable. This section also covers the 

time for filing claims, generally within 

two years after the claim accrues. For 

claims filed in calendar year 2020, the 

time for filing was expanded to three 

years. Because 10 U.S.C. 2733a(b)(4) 

prescribes the time period for filing 

claims, state statutes of limitation or 

repose are inapplicable. Consistent with 

10 U.S.C. 2733a(g), there is a limitation 

on the amount of attorney’s fees or 

expenses. The adjudication of claims 

under this authority is not an 

adversarial proceeding, there is no 

prevailing party to be awarded costs, 

and there is no judicial review. The 

settlement and adjudication of medical 

malpractice claims of members of the 

uniformed services is final and 

conclusive per 10 U.S.C. 2735. 


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2Available at https://www.esd.whs.mil/Portals/ 

54/Documents/DD/issuances/dodi/ 

540011p.pdf?ver=gM7QU0FeRs8wMwz

FXS8uSA%3d%3d. 

3Available at https://www.esd.whs.mil/Portals/ 

54/Documents/DD/issuances/dodi/ 

602518p.pdf?ver=2019-03-13-125803-017. 

A claim under this regulation is 

payable only if it may not be settled or 

paid under any other law, including the 

FTCA per Title 10 U.S.C. 2733a(b)(5). 

Claims are adjudicated based on 

generally accepted standards used in a 

majority of States in adjudicating claims 

under the FTCA without regard to the 

place where the service member 

received medical care per Title 10 

U.S.C. 2733a(f)(2)(B). In adjudicating 

claims, DoD will make every effort to 

determine the applicable law adopted 

by the majority of States (at least 26 

States). 

Certain exclusions that are part of 

FTCA law apply to claims under this 

new authority as well. These exclusions 

include the discretionary function 

exception, which generally bars any 

claim challenging a discretionary 

agency policy. Another FTCA exclusion 

that is applicable to claims under this 

part is the combatant activities 

exception, although only in extremely 

unusual circumstances such as an attack 

on a military hospital. It should be 

noted, however, that the FTCA 

exception regarding any claim arising in 

a foreign country is not applicable to 

claims under this part. Title 10 U.S.C. 

2733a(f)(2)(B) refers to such claims as 

covered by the new authority. 

Section 45.3 Authorized Claimants 

Section 45.3 discusses who may file a 

medical malpractice claim. As provided 

in the statute, 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 a member 

who is deceased or otherwise unable to 

file the claim due to incapacitation per 

Title 10 U.S.C. 2733a(b)(1). A claim may 

be filed by or on behalf of a reserve 

component member if the claim is in 

connection with personal injury or 

death occurring while the member was 

in a Federal duty status. 10 U.S.C. 

2733a(i)(3). The statute only authorizes 

claims by members of the uniformed 

services. Thus, the regulation does not 

permit derivative claims or other claims 

from third parties alleging a separate 

injury as a result of harm to a member 

of the uniformed services. Additionally, 

medical malpractice claims from 

members must be for an injury incident 

to service per 10 U.S.C. 2733a(a). For 

members on active duty, almost any 

injury or illness arising out of medical 

care received at a MTF by a DoD health 

care provider is considered incident to 

service. Medical care provided to a 

service member based on military status 

is incident to service. 

Section 45.4 Filing a Claim 

Rules for filing a claim are addressed 

in § 45.4. A member of a uniformed 

service or, when applicable, an 

authorized representative, may file a 

claim. Any written claim will suffice 

provided that it includes the following: 

(a) The factual basis for the claim, 

which identifies the conduct allegedly 

constituting malpractice (e.g., theory of 

liability and/or breach of the applicable 

standard of care); (b) a demand for a 

specified dollar amount; (c) signed by 

the claimant or claimant’s duly 

authorized agent or legal representative; 

(d) 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; (e) 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; and (f) 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 healthcare provider 

breached the standard of care that 

caused the alleged harm. This 

requirement for an affidavit at the time 

of filing the claim is consistent with the 

practice in a majority of States to require 

an expert report, expert affidavit, 

certification or affidavit of merit, or a 

similar requirement. 

While DoD is not requiring an expert 

opinion at the time of filing a claim, 

claimants may submit whatever 

information and documentation they 

believe necessary to support their claim, 

as claimants have the burden to 

substantiate their claims. As part of the 

investigation and evaluation of a claim, 

DoD will access pertinent DoD or other 

available government information 

systems and records regarding the 

member in order to consider fully all 

facts relevant to the claim. This may 

include information in personnel 

records, medical records, the Defense 

Eligibility and Enrollment System 

(DEERS), reports of investigation, 

medical quality assurance records, and 

other information. Upon DoD’s request, 

a claimant must identify any pertinent 

health care providers outside of DoD 

and provide a copy of his or her medical 

records from each of the identified 

health care providers, including a 

statement that the records are complete. 

A claimant must provide a medical 

release or medical releases upon DoD’s 

request, enabling DoD to obtain medical 

records from the identified health care 

providers. 

DoD may require that the claimant 

provide additional information DoD 

believes is necessary for adjudication of 

the claim, including the submission of 

an expert opinion at the claimant’s 

expense. If DoD intends to deny a claim 

in which an expert opinion has not been 

submitted, prior to denying the claim, 

DoD will notify the claimant and 

provide the opportunity for submission 

of an expert opinion at the claimant’s 

expense. DoD may determine an expert 

opinion is not required when allegations 

of medical malpractice are within the 

general knowledge and experience of 

ordinary laypersons, such as when a 

foreign object is improperly left in the 

body or an operation occurred on the 

wrong body part. 

There is no discovery process for 

adjudication of claims. However, 

claimants may obtain copies of records 

in DoD’s possession that are part of their 

personnel and medical records in 

accordance with DoD Instruction 

5400.11, ‘‘DoD Privacy and Civil 

Liberties Programs’’; 2 and DoD 

Instruction 6025.18, ‘‘Health Insurance 

Portability and Accountability Act 

(HIPAA) Privacy Rule Compliance in 

DoD Health Care Programs.’’ 3 Claimants 

are not entitled to attorney work 

product, attorney client privileged 

communications, material that are 

medical quality assurance records 

protected under 10 U.S.C. 1102, 

predecisional material, or other 

privileged information. 

Section 45.5 Elements of a Payable 

Claim; Facilities and Providers 

Section 45.5 covers one of the 

statutory elements of payable claims, 

stating that the health care involved 

occurred in a covered military medical 

treatment facility by a DoD health care 

provider acting within the scope of 

employment. As stated in the statute, 

the claimed act or omission constituting 

medical malpractice must have occurred 

in a DoD medical center, inpatient 

hospital, or ambulatory care center. A 


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133218p.pdf?ver=2018-05-24-133105-050. 

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 provider’s 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 

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. 2733a(c)(1). 

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); 

however, if the claimant’s 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 Government’s 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 

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 

Government’s 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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5 DoDI 6025.13, ‘‘Medical Quality Assurance 

(MQA) and Clinical Quality Management in the 

Military Health System (MHS),’’ February 17, 2011; 

Incorporating Change 2 on April 1, 2020 (whs.mil). 

6https://health.mil/Reference-Center/ 

Policies?query=6025.13&isDateRange=

0&broadVector=000&newsVector=0000000&

refVector=000000000100000&refSrc=1. 

including Servicemembers Group Life 

Insurance; Traumatic Servicemembers 

Group Life Insurance; Social Security 

disability benefits; Social Security 

survivor benefits; prior Government 

contributions to a Thrift Savings Plan 

that are inherited by a beneficiary; and 

commissary, exchange, and morale, 

welfare, and recreation facility access; 

the value of legal assistance and other 

services provided by DoD. Medical care 

provided while in active service or in an 

active status prior to death, retirement, 

or separation is also not offset. 

To illustrate what benefits are 

available under the existing 

comprehensive compensation system, 

both those that are offset and those that 

are not, and the value of these benefits, 

tables below in the section titled, 

‘‘Impact to the Government,’’ provide 

notional examples of benefits available 

under the existing comprehensive 

compensation system during Fiscal Year 

2020. 

DoD will estimate the present value of 

future payments and benefits. Many of 

such payments and benefits in cases of 

death and disability are lifetime benefits 

for members or survivors. With respect 

to future compensation and benefits that 

would change if a surviving spouse 

remarries, DoD will not assume 

remarriage. 

Section 45.12 Initial and Final 

Determinations 

Section 45.12 provides rules for 

provision to claimants of an Initial 

Determination regarding the claim. The 

Initial Determination may take the form 

of a grant of a claim and an offer of 

settlement or denial of the claim. 

If a claim does not contain the 

information required by § 45.4(b), DoD 

will issue an Initial Determination 

stating that DoD will issue a Final 

Determination denying the claim unless 

the deficiency is cured. DoD will 

provide the claimant 30 calendar days 

following receipt of the Initial 

Determination to cure the deficiency, 

unless an extension of time is granted 

for good cause. 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 

§ 45.12(a) may not be appealed. 

If a claim does not, based upon the 

information provided, state a claim 

cognizable under 10 U.S.C. 2733a or this 

interim final rule, DoD will issue an 

Initial Determination denying the claim. 

An Initial Determination on these 

grounds may be appealed under the 

procedures in § 45.13. 

If the claimant initially does not 

submit an expert report in support of his 

or her claim, where applicable, and DoD 

intends to deny the claim, DoD will 

issue an Initial Determination stating, 

without more, that DoD will issue a 

Final Determination denying the claim 

in the absence of an expert report. DoD 

will provide the claimant 90 calendar 

days following receipt of the Initial 

Determination to submit an expert 

report, unless an extension of time is 

granted for good cause. If the claimant 

does not timely submit an expert report, 

DoD will issue a Final Determination 

denying the claim, which may not be 

appealed, and will provide a brief 

explanation of the basis for the denial of 

the claim to the extent practicable. 

Except as provided above, DoD will 

endeavor to provide a brief explanation 

of the basis for an Initial Determination 

to the extent practicable. However, as 

required by 10 U.S.C. 1102, medical 

quality assurance records may not be 

disclosed to anyone outside DoD, to 

include the claimant, other Federal 

agencies, or the judiciary. This 

prohibition applies to any information 

derived from a peer review obtained 

under DoD’s Clinical Quality 

Management (CQM) Program to assess 

the quality of medical care provided by 

a DoD health care provider. DoD has a 

very extensive CQM Program (under 

DoD Instruction 6025.13 5 and Defense 

Health Agency Procedural Manual 

6025.13) 6 to assess the quality of health 

care services, identify areas where 

improvements can be made, and ensure 

appropriate accountability. The CQM 

Program includes a peer review of every 

potentially compensable event. DoD 

considers records of these reviews in 

determining whether there was a 

negligent or wrongful act or omission by 

a DoD health care provider in relation 

to the claim but may not lawfully 

disclose this information. Therefore, 

while DoD will attempt to explain the 

basis for the Initial Determination, DoD 

cannot disclose any information covered 

by 10 U.S.C. 1102. 

The Initial Determination will include 

information on the claimant’s right to 

file an administrative appeal. The 

claimant may request reconsideration of 

the damages contained in an Initial 

Determination if, within the time 

otherwise allowed to file an 

administrative appeal, the claimant 

identifies an alleged clear error in the 

damages calculation. DoD 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. 

Section 45.13 Appeals 

The issue of appeals from Initial 

Determinations is addressed in § 45.13. 

In any case, other than a claim that is 

denied for failure to provide an expert 

report, in which the claimant disagrees 

with the Initial Determination, the 

claimant has a right to file an 

administrative appeal. A claimant 

should explain why he or she disagrees 

with the Initial Determination but may 

not submit additional information in 

support of the claim unless requested to 

do so by DoD. 

An appeal must be filed within 60 

calendar days of the date of the Initial 

Determination, unless an extension of 

time is granted for good cause. If no 

timely appeal is filed, DoD will issue a 

Final Determination. 

Under the new rule, appeals will be 

decided by an Appeals Board 

administratively supported by the 

Defense Health Agency. The Appeals 

Board will consist of not fewer than 

three and no more than five DoD 

officials designated by the Defense 

Health Agency from the Defense Health 

Agency and/or the Military Departments 

who are experienced in medical 

malpractice claims adjudication. 

Appeals Board members must not have 

had any previous role in the claims 

adjudication under appeal. Appeals are 

decided on the written record and 

decisions will be approved by a majority 

of the members. There is no adversarial 

proceeding and no hearing. The Appeals 

Board may obtain or request information 

or assessments from appropriate 

sources, including from the claimant, to 

assist in deciding appeals. The claimant 

has the burden of proof by a 

preponderance of evidence that the 

claim is substantiated in the written 

record considered as a whole. Every 

claimant will be provided a written 

Final Determination on the claimant’s 

appeal, which may adopt by reference 

the Initial Determination or revise the 

Initial Determination, as appropriate. If 

the Final Determination revises the 

Initial Determination, DoD will provide 

a brief explanation of the basis for the 

revisions to the extent practicable. 

Appeals Board decisions are final and 

conclusive. The Appeals Board may 

reverse the Initial Determination to 


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7Available at https://www.esd.whs.mil/Portals/ 

54/Documents/DD/issuances/dodi/ 

602513p.pdf?ver=2019-03-11-081734-313. 

8Available at https://health.mil/About-MHS/ 

OASDHA/Defense-Health-Agency/Resources-andManagement/DHA-Publications. 9Available at https://www.npdb.hrsa.gov/. 

grant or deny a claim and may adjust 

the settlement amount contained in the 

Initial Determination either upwards or 

downwards, as appropriate. 

Section 45.14 Final and Conclusive 

Resolution 

Section 45.14 states that, as provided 

in the statute, the adjudication and 

settlement of a claim is final and 

conclusive. Unlike the FTCA, the 

Military Claims Act, 10 U.S.C. chapter 

163, which provides the authority for 

this regulation, does not give Federal 

courts jurisdiction over claims. Thus, 

the administrative adjudication process 

for all claims under the Military Claims 

Act, including medical malpractice 

claims under this part, is final and not 

subject to judicial review in any court. 

No claim may be paid unless the 

amount tendered is accepted by the 

claimant in full satisfaction. Settlement 

agreements will incorporate the 

statutory requirements regarding 

limitations on attorneys’ fees, as well as 

a bar to any other claim against the 

United States or DoD health care 

providers arising from the same set of 

facts. 

Section 45.15 Other Claims Procedures 

and Administrative Matters 

Finally, § 45.15 sets out other claims 

procedures and administrative matters. 

If the claimant is represented by 

counsel, all communications will be 

through the claimant’s counsel. 

Laws applicable to false claims and 

false statements to the Government are 

applicable to claims and information 

relating to claims under this new 

authority. 

This section also notes the 

requirement of 10 U.S.C. 2733a(e) that 

not later than 30 calendar days after a 

determination of medical malpractice or 

the payment of a claim, a report is sent 

to the Director, Defense Health Agency 

to be used for all necessary and 

appropriate purposes, including 

medical quality assurance. This means 

that DoD Final Determinations made 

under this new claims system—even if, 

due to offsets for compensation under 

the comprehensive system discussed 

above, no money is paid—will be 

reviewed under the Military Health 

System Clinical Quality Management 

Program, in accordance with DoD 

Instruction 6025.13 7 and Defense 

Health Agency Procedural Manual 

6025.13.8 That program features 

comprehensive activities to monitor the 

quality of health care in MTFs, identify 

opportunities for improvement, and 

maintain appropriate accountability for 

health care providers. That system 

includes procedures to grant and take 

specified adverse actions on clinical 

privileges and report certain events to 

the National Practitioner Data Bank 

(NPDB) maintained by the Department 

of Health and Human Services as a data 

repository available to health care 

systems throughout the United States.9

NPDB reporting includes cases where 

DoD compensation is paid through the 

Disability Evaluation System or survivor 

benefits attributable to medical 

malpractice by a DoD health care 

provider and now, under this part, paid 

malpractice claims. Reports to the NPDB 

are accompanied by reports to State 

licensing boards and certifying agencies 

of the health care providers involved. 

Therefore, in addition to providing an 

additional potential compensation 

remedy, 10 U.S.C. 2733a reinforces DoD 

Clinical Quality Management Program 

procedures for appropriate 

accountability of DoD health care 

providers. 

IV. What To Expect in the Claims 

Process 

a. Who may File a Claim. Service 

members or former/retired Service 

members (‘‘you’’) may file a claim. Your 

authorized representative may file a 

claim on your behalf if you are deceased 

or incapacitated. DoD will acknowledge 

receipt of your claim via mail and/or 

email using the contact information you 

provided in your claim. 

b. What to Include with a Claim. Your 

claim must provide, in writing, the 

reason why you believe a DoD health 

care provider committed malpractice 

and the amount of money you believe 

you should receive. No specific form or 

format is required. 

If you have an attorney, you need to 

include in your claim filing an affidavit 

confirming that you have authorized the 

attorney to represent you. 

You usually will need to provide an 

affidavit with your claim filing that you 

consulted with a health care 

professional who opined that a DoD 

health care provider breached the 

medical standard of care and caused 

harm to you. You do not need to 

provide this affidavit if the malpractice 

is obvious, such as an operation on the 

wrong body part. 

Because all claims differ, nothing else 

is required at the time you file your 

claim. DoD may find during the review 

of your claim that additional 

information is needed. DoD will ask you 

for this information at that time. You 

may, but are not required to, submit any 

other information that you believe 

supports your claim at the time you file 

it. 

c. Where to File a Claim. You should 

submit the claim 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 for filing a claim may be found at 

https://www.jag.navy.mil/. 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. 

d. Time for Filing a Claim. Generally, 

you must file your claim by the later of 

(1) two years from the date of the injury 

or death; or (2) the date you knew, or 

with the exercise of reasonable diligence 

should have known, of the injury or 

death and that the possible cause of the 

injury or death was malpractice. A 

special rule existed in 2020 that allowed 

claims from 2017 to be filed in 2020, but 

that rule has expired. 

e. Initial Determination on Your 

Claim. Once you have filed your claim, 

DoD will locate medical records held by 

DoD and VA and review your claim to 

determine whether malpractice 

occurred. 

DoD may ask you for additional 

information about your medical care as 

part of this review. If DoD concludes 

that medical malpractice occurred, DoD 

may ask you for information about the 

harm to you as a result of malpractice 

to determine the amount of money you 

will be offered as a settlement. This 

amount of money is also called 

‘‘damages.’’ 

If DoD intends to deny your claim and 

you have not yet submitted an expert 

report in support of your claim, DoD 

will provide you with an opportunity to 

submit one before denying your claim. 

You usually will have 90 days to 

provide an expert report. 

Once DoD has completed its review of 

your claim, you will be issued an Initial 

Determination. This Initial 


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10 Data are from the ‘‘Evaluation of the TRICARE 

Program: Fiscal Year 2020 Report to Congress— 

Access, Cost and Quality Data through Fiscal Year 

2019.’’ which can be found at https://health.mil/ 

Reference-Center/Reports/2020/06/29/Evaluationof-the-TRICARE-Program-Fiscal-Year-2020-Reportto-Congress. 

11Active Duty include members of the Army, 

Navy, Air Force, Marines. The other uniformed 

services are the Coast Guard, Public Health Service, 

and the National Oceanic and Atmospheric 

Administration. The Space Force was established 

December 20, 2019, and was not included in this 

Fiscal Year 2019 data. 

12According to the Bureau of Labor Statistics, the 

median weekly earnings for full-time wage and 

salary workers in 2020 was $984.00, for an hourly 

rate based on a 40-hour workweek of $24.60. See 

https://www/bls.gov/cps/cpsaat39.htm. 

Determination will either state that your 

claim is granted and offer you an 

amount of money in settlement of your 

claim or will state that your claim is 

denied. 

A settlement does not entitle you to 

any new benefits from DoD or the VA. 

A settlement will not cause you to lose 

any DoD or VA benefits, whether at the 

time of the settlement or in the future. 

f. Reconsideration. If DoD has made a 

clear error in the calculation of the 

amount of money you are offered to 

settle your claim, you may request 

reconsideration. A clear error is an 

obvious or typographical error, such as 

a reference to $10 when it is clear $100 

was intended. The reconsideration 

process was intended to fix minor issues 

without requiring you to file an appeal. 

You must file your request for 

reconsideration within 60 days of 

receipt of an Initial Determination. DoD 

will assume that you received the Initial 

Determination within five calendar days 

after the date the Initial Determination 

was mailed or emailed. 

g. Appeals. If you disagree with an 

Initial Determination, you generally may 

file an administrative appeal. Your 

appeal should explain why you disagree 

with the Initial Determination. You 

must file your appeal within 60 days of 

receipt of an Initial Determination. DoD 

will assume that you received the Initial 

Determination within five calendar days 

after the date the Initial Determination 

was mailed or emailed. 

You may not appeal a Final 

Determination issued because of 

deficiencies in your claim filing such as 

a missing affidavit or because DoD has 

determined you need to submit an 

expert report. You will have been given 

an opportunity to fix deficiencies or 

submit an expert report before the Final 

Determination is issued. 

Your appeal will be decided by an 

Appeals Board of three to five DoD 

officials who have experience with 

medical malpractice claims and have no 

prior connection to your claim. 

You may not submit additional 

information in support of your claim on 

appeal. DoD will ask you for additional 

information if it is needed. 

The Appeals Board will issue a Final 

Determination on your claim. The 

Appeals Board may reverse the Initial 

Determination to grant or deny a claim. 

The Appeals Board may adjust the 

damages amount in the Initial 

Determination either upwards or 

downwards. A Final Determination is 

not subject to review in any court. 

If you do not file an appeal, DoD will 

issue a Final Determination. 

h. Settlement Agreement. You will be 

paid the damages amount offered in a 

Final Determination after you sign a 

settlement agreement provided to you 

by DoD. 

i. Claims Process is Final. This claims 

process is the only process for Service 

members to bring medical malpractice 

claims related to their service. You may 

not challenge a Final Determination or 

the amount of any damages calculation 

contained in a Final Determination in 

court. 

j. Attorneys. You may have an 

attorney assist you with your claim. If 

you have an attorney, DoD will 

communicate with your attorney instead 

of with you regarding your claim. Your 

attorney may not charge you attorney 

fees of more than 20 percent of the 

amount paid to you under this process. 

V. Regulatory Analysis 

a. Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

Executive Orders 13556 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distribution of impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. 

Accordingly, this interim final rule has 

been reviewed by the Office of 

Management and Budget under the 

requirements of these Executive Orders. 

It has been determined to be a 

significant regulatory action, although 

not economically significant. 

Accordingly, this regulatory impact 

analysis presents the costs and benefits 

of the rulemaking. 

b. Summary 

This interim final rule implements 

requirements of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year 2020 permitting members of the 

uniformed services or their authorized 

representatives to file claims for 

personal injury or death caused by a 

Department of Defense (DoD) health 

care providers in certain military 

medical treatment facilities. Because 

Federal courts do not have jurisdiction 

to consider these claims, DoD is issuing 

this rule to provide uniform standards 

and procedures for considering and 

processing these actions 

administratively. 

c. Affected Population 10

At the end of Fiscal Year 2019, there 

were approximately 1,400,000 Active 

Duty, 390,000 Reserve and National 

Guard, and 250,000 other uniformed 

Service members eligible for DoD 

healthcare benefits.11 or around 19% of 

the total eligible beneficiary population. 

These uniformed Service members will 

be able to file claims with DoD alleging 

malpractice. There were approximately 

8,140,000 other eligible beneficiaries to 

include retirees, retiree family members, 

and family members of Active Duty 

Service members. These other eligible 

beneficiaries currently may file claims 

with DoD alleging malpractice. 

d. Costs 

As a result of the rule, individuals 

who believe they were subjected to 

malpractice may consider filing a claim. 

In determining whether to file a claim, 

individuals may consult with medical 

professionals and attorneys and we 

assume that most claimants will have 

attorneys. We estimate that this will 

require 5 hours for individuals to locate 

an attorney, view and download 

pertinent medical records, and discuss 

the case with an attorney (or a medical 

professional for claimants without 

attorneys). At a mean hourly rate of 

$27.07 based on data from the Bureau of 

Labor Statistics (BLS),12 the cost of this 

activity is $135. 

The cost for a consultation with a 

medical professional, whether directly 

by the claimant or through an attorney 

varies by the type of professional. Based 

upon information available from 

consultations and reports obtained in 

malpractice claims against the 

government and estimates of time spent 

by DoD in similar activity when 

handling those claims, we estimate a 

typical review of records would take 

about 3 to 5 hours (and include 

reviewing journals in support of the 

professional’s opinion), with an 

additional 2 to 4 hours to write a report 

(if such a report is submitted with a 


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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. 

14See https://www.bls.gov/oes/2020/may/oes_

nat.htm. Note that we use wages for family medical 

physicians as a proxy for physicians. 

15See https://www.bls.gov/oes/2020/may/oes_

nat.htm. 

16These 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. 

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 17–26 

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. 

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 2733a(b)(4) 

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 

$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 GS–11 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 claimant’s 

attorney would spend analyzing a claim 

(17–26 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 6–8 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 17–26 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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18The 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. 

As a result, we estimate total annual 

processing costs for these 50 claims to 

be $309,284 to $458,036. 

In summary, total estimated annual 

costs of this interim final rule are 

$1,710,386 to $3,315,638. 

e. Transfers 

Regardless of the number of claims in 

which malpractice occurred, the only 

claims in which damages will be 

awarded are those which exceed the 

offsets for any payment to be made.18

Subject to some exceptions such as 

insurance benefits for which Service 

members have paid premiums, benefits 

received through the DoD and VA 

comprehensive compensation system 

applicable to all injuries and deaths will 

be applied as an offset in calculating 

malpractice damages to prevent a 

double recovery. Because of these 

offsets, regardless of the number of 

claims filed, the only claims pertinent 

for purposes of payments made by the 

government are those that would exceed 

applicable offsets. 

We estimate 7 claims per year will 

result in additional payments made to 

individuals, which is the number of 

claims anticipated to involve additional 

payments after offsets are applied. To 

help explain how we reached this 

estimate, we prepared the following 

tables as notional examples to illustrate 

what benefits are available under the 

existing comprehensive compensation 

system, both those that are offset and 

those that are not, and the value of these 

benefits in Fiscal Year 2020. In addition 

to the benefits in the above tables, 

disability retirees and survivors receive 

healthcare for life through TRICARE. In 

Fiscal Year 2020, based on information 

from the Office of the Assistant 

Secretary of Defense for Health Affairs, 

the average value of the TRICARE 

benefit for an under-65 retiree family of 

three was $14,600 per year. Benefits 

provided through the Social Security 

Administration, such as Social Security 

disability benefits and Social Security 

survivor benefits, are also in addition to 

the above tables. Calculations in the 

tables were provided by the Office of 

Military Compensation Policy, within 

the Office of the Under Secretary of 

Defense for Personnel and Readiness. 

BILLING CODE 5001–06–P 


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Table 1: Notional Examples of Benefits Following a Service Member's Death on Active Duty -

Fiscal Year 2021 Values 

(a) (b) (c) 0-519 (16 E-6 (10 YOS) 

Years of Married ( age 

E-4 (3 Years 

of Service) Type of Description Service) 29) with Two Married (age Payment Married ( age Children 22) with One 38) with Two Child Children 

Amount Amount Amount 

Service Life insurance. All 

Members members are 

Group Life automatically covered 

Insurance unless declining 

(SGLI) coverage. Amount $400,000 $400,000 $400,000 

shown assumes 

member elected 

maximum coverage. 

Payment is tax-free. 

Death Gratuity Immediate tax-free 

payment to eligible 

survivors of members 

who die while on $100,000 $100,000 $100,000 

active duty or certain 

inactive duties. 

Amount does not vary. 

Total Immediate Payments $500,000 $500,000 $500,000 

Survivor Annuity paid to the 

Benefit Plan surviving spouse for 

(SBP) life, or until 

remarriage if surviving 

spouse remarries prior $17,274 $41,304 $10,679 to age 57. This 

payment is offset by ($25,013 after ($984 after DIC (fully offset 

DIC offset) by DIC) Dependency and offset) 

Indemnity 

Compensation (DIC), 

if DIC is paid to the 

spouse.20 

Dependency Tax-free monetary 

and Indemnity benefit paid to eligible $24,362.40 $24,362.40 $20,326.56 

survivors of military 
32204 Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations 


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(a) (b) (c) 0-519 (16 E-6 (lOYOS) E-4 (3 Years Years of Married ( age of Service) Type of Description Service) 29) with Two Married (age Payment Married (age Children 22)with One 38)with Two Child Children 

Amount Amount Amount 

Compensation members who died in 

(DIC) the line of duty or 

eligible survivors of 

Veterans whose death 

resulted from a 

service-related injury 

or disease. Paid by 

Department of VA.21 

Special Paid to the surviving 

Survivor spouse if the spouse is 

Indemnity subject to an offset of $3,924 $3,924 $3,924 

Allowance SBP due to receipt of 

(SSIA) DIC.22 

Total Annual SBP ( decreased by the 

Recurring amount of DIC)+ DIC 

Payment for + SSIA. Amount $53,299 $29,270 $24,250 

First Year shown is in 2020 

dollars. 

Estimated Assumptions: 

Lifetime Sum • Spouse lives to age 

of Annual 87, but does not 

Payments remarry prior to age 

57. 

• SBP ( offset by DIC) 

is paid to the spouse 

for life rather than 

to the children. 

• DIC for child ends 

10 years after the 

death of the member $4,842,372 $3,151,453 $3,749,434 

when children reach 

age 19 (note: for the 

E-4, it assumes 15 

years after death of 

the member) and 

resumes when the 

spouse reaches age 

65. 

• Average annual cost 

of living adjustment 

is 2.75%. 
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(a) (b) (c) 0-519 (16 E-6 (lOYOS) 

Years of Married ( age 

E-4 (3 Years 

of Service) Type of Description Service) 29) with Two Married (age Payment Married ( age Children 22)with One 38)with Two Child Children 

Amount Amount Amount 

Total Estimated Government-Provided 

Direct Benefits $5,342,372 $3,651,453 $4,249,43423 

(Immediate + Recurring Payments) 

Table 2: Notional Estimates of Monthly DoD and VA Disability Benefits for a Member 

Permanently Injured on Active Duty- Fiscal Year 2021 Values 

(a) (b) (c) (d) 

0-3 (Over E-6 (Over8) 0-3 (Over 8), E-6 (Over 8) 

8) Age 30, Age 26, Age30 Age 26, 

Married Married Married Married 

Type of Description Male with Female with Male with Female with 

Payment Two Two Two Two Children 

Children Children Children with 50% 

with with 100% with 50% Disability 

100% Disability Disability 

Disability 

Monthly Monthly Monthly Monthly 

DoD Disability Disability retired pay 

Retired Pay under Chapter 61, Title 

Calculated 10, U.S.C., is determined 

Based on by multiplying the 

Disability disability percentage $4,542 $2,519 $3,028 $1,679 Percentage (maximum 75 percent) by 

(Before VA the retired pay base, which 

Offset) is the average of the 

highest 36 months of pay 

that member (received.24 

Retired Pay A disability retiree has the 

Calculated option of choosing to have 

Based on retired pay calculated 

Years of based on the disability 

Service percentage (A) or based $1,211 $671 $1,211 $671 

on longevity of service 

(B). In most cases, the 

disability percentage 

results in a ,zreater 
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(a) (b) (c) (d) 

0-3 (Over E-6 (Over8) 0-3 (Over 8), E-6 (Over 8) 

8) Age 30, Age 26, Age30 Age 26, 

Married Married Married Married 

Type of Description Male with Female with Male with Female with 

Payment Two Two Two Two Children 

Children Children Children with 50% 

with with 100% with 50% Disability 

100% Disability Disability 

Disability 

amount of retired pay. 

Longevity retired pay is 

calculated by multiplying 

years of service by the 

average of the highest 36 

months of pay by the 

applicable retirement 

program multiplier. 25 

VA Disability A tax-free monetary 

Compensation benefit paid to veterans 

with disabilities that are 

the result of a disease or 

injury incurred or 

aggravated during active 

military service. The $3,492 $3,492 $1,086 $1,086 

benefit amount is 

graduated according to the 

degree of the disability on 

a scale from l O percent to 

100 percent (in increments 

of 10 percent).26 

DoD Disability A retiree must waive a 

Retired Pay portion of his or her gross 

(After VA DoD retired pay, dollar for 

Offset) dollar, by the amount of $1,049 $0 $1,941 $592 

his or her VA Disability 

Compensation pay 

Total Monthly VA Disability 

DoD and VA Compensation+ DoD $4,541 $3,492 $3,027 $1,678 Compensation Disability Retired Pay 

After VA Offset. 

Annual Annual Annual Annual 

AnnualDoD Total Monthly DoD and 

and VA VA Compensation x 12 $54,492 $41,904 $36,324 $20,136 Compensation months 
Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations 32207 

19 In these tables, ‘‘O–5’’ refers to an officer grade; 

‘‘E–4’’ to an enlisted grade. 

20Amount shown is annual. The spouse SBP 

annuity is 55% of what retired pay would have 

been had the member retired with a full disability 

retirement on the date of his or her death. SBP is 

adjusted annually for cost-of-living. The amount 

reflected is for 2020 and assumes the spouse 

receives the full amount of SBP. SBP is subject to 

offset if the spouse also receives DIC (only for the 

portion of DIC payable to the spouse. If SBP is paid 

to the children instead of the spouse, there is no 

offset but the annuity ends when all children reach 

the age of majority). 

21Basic Monthly Rate for 2020 is $1,340.14 plus 

$332.00 per child age 18 or younger. $16,081 is 

payable as DIC for the spouse which is offset against 

SBP. 

22SSIA is only received if SBP is reduced by the 

amount of DIC. If children receive SBP in full while 

the spouse receives DIC, no SSIA is paid. 

23The total payout for the spouse of the E–4 is 

higher than that for the E–6 because the spouse is 

7 years younger, but both live until age 87. 

24For simplicity of calculation, each member is 

assumed to have 12 months of service ‘‘over 8 

years’’ and 24 months of service ‘‘over 6 years’’ in 

the same paygrade they currently hold, with a 

retirement date of December 31, 2019. Prior to 

retirement, each member was covered under the 

High-3 retirement program. 

25For members who entered service prior to 

January 1, 2018, the applicable multiplier is 2.5 

percent unless the member elected to opt into the 

Blended Retirement System or elected the Career 

Status Bonus and converted to the REDUX 

retirement program. For these examples, all 

members are assumed to have remained under the 

legacy ‘‘High-3’’ retirement program with a 2.5 

percent multiplier. 

26Rates for veteran + spouse + child + additional 

child at https://www.benefits.va.gov/

COMPENSATION/resources_comp01.asp#BM05. 

BILLING CODE 5001–06–C 

We estimate that 7 claims per year 

would have damages that would exceed 

the offset amount of $1.1 million. We 

used the notional example in Table 2(d), 

the lowest of the estimates in the 

notional examples, as the basis for the 

$1.1 million offset. For the Table 2(b) 

example of the married enlisted member 

with two children in the grade of E–6 

who is medically retired with a 50 

percent disability rating, the current 

value of her lifetime compensation 

would be $1,142,430. In addition to the 

$1,142,430 paid, benefits include 

medical care for the retired Service 

member and her family. All these 

amounts would offset any damages 

award. 

We then estimated the number of 

claims likely to exceed $1.1 million 

using claims data from non-Service 

member claims under the FTCA or 

MCA. In 2019 and 2020, the Military 

Departments had 14 claims from retirees 

or dependents under the FTCA or MCA 

with damages that exceeded $1.1 

million, whether through settlement or 

an adverse court judgment. The average 

amount payable for these 14 claims over 

2 years was approximately $2.7 million. 

In one year, therefore, we estimate that 

7 claims by Service members would go 

forward that exceed the $1.1 million 

threshold for payable damages. 


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(a) (b) (c) (d) 

0-3 (Over E-6 (Over8) 0-3 (Over 8), E-6 (Over 8) 

8) Age 30, Age 26, Age30 Age 26, 

Married Married Married Married 

Type of Description Male with Female with Male with Female with 

Payment Two Two Two Two Children 

Children Children Children with 50% 

with with 100% with 50% Disability 

100% Disability Disability 

Disability 

Lifetime DoD Annual total multiplied by 

and VA the number of years of 

Compensation projected life. The life 

After expectation for a male 30-

Disability year-old retired officer is 

Retirement 54.5 additional years. The 

life expectation for a 

female 26-year-old retired 

enlisted member is 56.5 

additional years. 

Amounts shown are in $2,969,814 $2,367,576 $1,979,658 $1,137,684 

2020 dollars without 

taking into account annual 

cost-of-living adjustments 

(COLA) (i.e., the present 

value). The current 

COLA estimate used by 

the DoD Board of 

Actuaries for calculating 

future military retired pay 

is 2.75 percent per year. 

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32208 Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations 

Assuming 7 claims per year going 

forward exceeding $1.1 million, and 

average damages of $1.6 million (the 

difference between the average amount 

of $2.7 million paid per claim in the 

non-Active Duty claims and the 

estimated $1.1 million in offsets per 

Service member claim), the additional 

payments made by the U.S. because of 

section 731are estimated to be $11.2 

million per year. Of this, the first 

$100,000 for each claim would be paid 

by DoD and the remainder paid by the 

Treasury Department, for an estimated 

total of $0.7 million to be paid by DoD 

based on 7 claims and $1.05 million to 

be paid by the Treasury Department. 

As the tables above illustrate, 

Government paid benefits would not be 

a factor, as this claims process would 

have no impact on what the benefits 

Service member is already receiving, 

has received, or is entitled to receive in 

the future based on his or her injuries. 

Total transfers from the U.S. 

government to claimants are estimated 

to be $11.2 million per year. 

f. Benefits 

Absent the claims process established 

by section 731, Service members would 

not have the opportunity for potential 

monetary payments above the amounts 

they currently receive through current 

DoD and VA benefits. In addition to 

providing an additional potential 

compensation remedy, the claims 

process reinforces DoD Clinical Quality 

Management Program procedures for 

appropriate accountability of DoD 

health care providers. NPDB reporting 

includes cases where DoD 

compensation is paid through the 

Disability Evaluation System or survivor 

benefits attributable to medical 

malpractice by a DoD health care 

provider and now, under this part, paid 

malpractice claims. Reports to the NPDB 

are accompanied by reports to State 

licensing boards and certifying agencies 

of the health care providers involved. 

The claims process further provides an 

opportunity for DoD to identify 

opportunities for improvement in in the 

delivery of healthcare, potentially 

preventing harm to others based upon 

measures taken by DoD as a result of a 

claim even if the claim does not result 

in the payment of monetary damages. 

Finally, this process is only applicable 

in certain cases of medical malpractice. 

g. Interim Final Rule Justification 

This rule is being issued as an interim 

final rule based on explicit statutory 

authorization and clear Congressional 

intent. Specifically, 10 U.S.C. 

2733a(f)(3) provides that in order ‘‘to 

implement expeditiously’’ the new law 

DoD may issue the regulations the 

statute requires ‘‘by prescribing an 

interim final rule.’’ The law also 

requires DoD to consider public 

comments and issue a final rule within 

one year after issuing an interim final 

rule. The new law became effective 

January 1, 2020, and Congress desired 

expeditious adjudication of claims 

arising from alleged instances of 

medical malpractice dating back to 

2017. For this reason, there is good 

cause for finding, consistent with 5 

U.S.C. 553(b)(B), that prior notice and 

public comment are impracticable, 

unnecessary, or contrary to the public 

interest. 

h. Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (5 U.S.C. 601) 

This interim final rule is not subject 

to the Regulatory Flexibility Act (5 

U.S.C. 601) because it is not a notice of 

proposed rulemaking under 5 U.S.C. 

601(2). 

i. Assistance for Small Entities 

This interim final rule does not 

impose requirements on small entities. 

j. Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this interim final rule as not 

a major rule, as defined by 5 U.S.C. 

804(2). 

k. Sec. 202, Public Law 104–4, 

‘‘Unfunded Mandates Reform Act’’ 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

(2 U.S.C. 1532) requires agencies to 

assess anticipated costs and benefits 

before issuing any rule whose mandates 

require non-Federal spending in any 

one year of $100 million in 1995 dollars, 

updated annually for inflation. This 

interim final rule will not mandate any 

requirements for State, local, or tribal 

governments, nor affect private sector 

costs. 

l. Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapter 35) 

It has been determined that 32 CFR 

part 45 does not impose new reporting 

or recordkeeping requirements under 

the Paperwork Reduction Act of 1995. 

m. Executive Order 13132, ‘‘Federalism’’ 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has Federalism implications. 

This interim final rule will not have a 

substantial effect on State and local 

governments. 

List of Subjects in 32 CFR Part 45 

Medical, Malpractice, Claims, 

Uniformed Services. 

■ Accordingly 32 CFR part 45 is added 

to read as follows: 

PART 45—MEDICAL MALPRACTICE 

CLAIMS BY MEMBERS OF THE 

UNIFORMED SERVICES 

Sec. 

45.1 Purpose of this part. 

45.2 Claims payable and not payable in 

general. 

45.3 Authorized claimants. 

45.4 Filing a claim. 

45.5 Elements of payable claim: facilities 

and providers. 

45.6 Element of payable claim: negligent or 

wrongful act or omission. 

45.7 Element of payable claim: proximate 

cause. 

45.8 Calculation of damages: disability 

rating. 

45.9 Calculation of damages: economic 

damages. 

45.10 Calculation of damages: noneconomic damages. 

45.11 Calculation of damages: offsets for 

DoD and VA Government compensation. 

45.12 Initial and Final Determinations. 

45.13 Appeals. 

45.14 Final and conclusive resolution. 

45.15 Other claims procedures and 

administrative matters. 

Authority: 10 U.S.C. 2733a. 

§ 45.1 Purpose of this part. 

(a) In general. The purpose of this part 

is to establish the rules and procedures 

for members of the uniformed services 

or their representatives to file claims for 

compensation for personal injury or 

death caused by the medical 

malpractice of a Department of Defense 

(DoD) health care provider. Claims 

under this part may be settled and paid 

by DoD under the Military Claims Act, 

Title 10, United States Code, Chapter 

163, specifically section 2733a of Title 

10 (hereinafter 10 U.S.C. 2733a, section 

2733a, or the statute), as added to the 

Military Claims Act by section 731 of 

the National Defense Authorization Act 

for Fiscal Year 2020 (Pub. L. 116–92; 

133 Stat. 1457). Claims are adjudicated 

under an administrative process. This 

administrative process follows a set of 

rules and procedures set forth in this 

part. These rules and procedures are 

based primarily on a number of detailed 

provisions in the statute. 

(b) Relationship to military and 

veterans’ compensation programs. 

Federal law provides a comprehensive 

system of compensation for military 

members and their families in cases of 


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death or disability incurred in military 

service. This system applies to all 

causes of death or disability incurred in 

service, whether due to combat injuries, 

training mishaps, motor vehicle 

accidents, naturally occurring illnesses, 

household events, with limited 

exceptions (e.g., when the member is 

absent without leave or the injury is due 

to the member’s intentional misconduct 

or willful negligence). This 

comprehensive compensation system 

applies to cases of personal injury or 

death caused by medical malpractice 

incurred in service as it does to all other 

causes. This part provides for the 

possibility of separate compensation in 

certain cases of medical malpractice but 

in no other type of case. A medical 

malpractice claim under this part will 

have no effect on any other 

compensation the member or family is 

entitled to under the comprehensive 

compensation system applicable to all 

members. However, a claimant under 

this part does not receive duplicate 

compensation for the same harm. Thus, 

with some limited exceptions, a 

potential malpractice damages award 

under this part is reduced or offset by 

the total value of the compensation the 

claimant is expected to receive under 

the comprehensive compensation 

system, whether or not the claimant 

ultimately receives such compensation, 

and the ultimate amount of a settlement 

under this part will be the amount, if 

any, that a potential malpractice 

damages award determined under the 

terms and conditions of this part 

exceeds the value of all the 

compensation and benefits the claimant 

is otherwise expected to receive from 

DoD or the Department of Veterans 

Affairs (VA). 

(c) Relationship to Healthcare 

Resolutions Program. The medical 

malpractice claims process under this 

part is separate from the Military Health 

System Healthcare Resolutions Program. 

The Healthcare Resolutions Program, 

under Defense Health Agency 

Procedural Instruction 6025.17, is an 

independent, neutral, and confidential 

system that promotes full disclosure of 

factual information—including 

information involving adverse events 

and outcomes—and mediation of 

clinical conflicts. The program is part of 

the Military Health System’s 

commitment to transparency, which 

also includes a patient’s right to be 

heard as part of any quality assurance 

review of care provided. The Healthcare 

Resolutions Program is not involved in 

legal proceedings, compensation 

matters, or the adjudication of claims 

under this part. However, any member 

of the uniformed services may engage 

the Healthcare Resolutions Program to 

address non-monetary aspects of his or 

her belief that he or she has been 

harmed by medical malpractice by a 

DoD health care provider. Because it is 

not involved in claims or legal 

proceedings, the Healthcare Resolutions 

Program disengages when a claim is 

filed by a service member or his or her 

representative. 

§ 45.2 Claims payable and not payable in 

general. 

(a) In general. This section sets forth 

a number of terms and conditions 

included in the statute (10 U.S.C. 2733a) 

that describe claims that are payable 

and not payable. Some of these terms 

and conditions are discussed in more 

detail in later sections of this part. 

(b) Claim not otherwise payable. As 

required by the statute (section 

2733a(b)(5)), a claim under this Part 

may only be paid if it is not allowed to 

be settled and paid under any other 

provision of law. This limitation 

provides that it cannot be a claim 

allowed under the Federal Tort Claims 

Act (FTCA), 28 U.S.C. 1346 and Chapter 

171. Claims against the United States 

filed by members of the uniformed 

services or their representatives for 

personal injury or death incident to 

service are not allowed under the FTCA. 

These claims may be allowed under this 

Part if they meet the other applicable 

terms and conditions. 

(c) Time period for filing claims. (1) 

The statute (section 2733a(b)(4)) 

requires that a claim must be received 

by DoD in writing within two years after 

the claim accrues. For mailed claims, 

timeliness of receipt will be determined 

by the postmark. 

(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. In calculating the 

amount that may be paid under this 

part, consistent with section 2733a(c)(2), 

there is no additional amount permitted 

for attorneys’ fees or expenses 

associated with filing a claim or 

participating in any process relating to 

the adjudication of the claim. The 

adjudication of claims under this part is 

not an adversarial proceeding and there 

is no prevailing party to be awarded 

costs. 

(e) Claims adjudication based on 

national standards. As required by the 

statute (section 2733a(f)(2)(B)), claims 

are adjudicated based on national 

standards consistent with generally 

accepted standards used in a majority of 

States in adjudicating claims under the 

FTCA. The determination of the 

applicable law is without regard to the 

place of occurrence of the alleged 

medical malpractice giving rise to the 

claim or the military or executive 

department or service of the member of 

the uniformed services. Foreign law has 

no role in the case of claims arising in 

foreign countries. The legal standards 

set forth in other sections of this part 

apply to determinations with respect to: 

(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. 

The generally accepted legal standards 

under FTCA that are required to be 

reflected in the adjudication of claims 

under this Part include certain 

exclusions that are part of FTCA law. 

(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. 


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(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. This section describes 

who may file a claim under this part. A 

claim may be filed only by a member of 

a uniformed service or an authorized 

representative on behalf of a member 

who is deceased or otherwise unable to 

file the claim due to incapacitation. A 

member of the uniformed services 

includes a cadet or midshipman from 

the military academies. It does not 

include an applicant to join a uniformed 

service or a delayed entry program 

recruit who has not been accessed into 

active duty. 

(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. 

The statute only authorizes claims by 

members of the uniformed services. 

Thus, the regulation does not permit 

derivative claims or other claims from 

third parties alleging a separate injury as 

a result of harm to a member of the 

uniformed services. This prohibition 

includes claims by family members or 

survivors arising out of the 

circumstances of personal injury or 

death of a member. 

(c) Incident to service requirement. 

Under section 2733a(a), the member’s 

personal injury or death must be 

incident to service. An injury or death 

is incident to service if the medical care 

provided is based on the member’s 

status under this section. 

§ 45.4 Filing a claim. 

(a) In general. A member of a 

uniformed service or, when applicable, 

an authorized representative may file a 

claim in writing. Any written claim will 

suffice as long as it is meets the 

requirements below and is signed by the 

claimant or authorized representative. 

(b) Contents of the claim. The filed 

claim must include the following: 

(1) The factual basis for the claim, 

including identification of the conduct 

allegedly constituting malpractice (e.g., 

the theory of liability and/or breach of 

the applicable standard of care); 

(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 claimant 

must submit 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. The requirement in this 

paragraph does not apply to claims filed 

prior to the publication of this Interim 

Final Rule. 

(c) Additional information to file in 

support of claim. In the investigation 

and adjudication of a claim, DoD will 

access pertinent DoD records and 

information systems regarding the 

member in order to consider fully all 

facts that have a bearing on the claim. 

This collection may include information 

in personnel and medical records, the 

Defense Eligibility and Enrollment 

System (DEERS), reports of 

investigation, medical quality assurance 

records, and other information. Upon 

DoD’s request, a claimant must identify 

any pertinent health care providers 

outside of DoD, and provide a copy of 

his or her medical records from each of 

the identified health care providers, 

including a statement that the records 

are complete. A claimant must provide 

medical release(s) upon DoD’s request, 

enabling DoD to obtain medical records 

from these health care providers. 

Claimants may submit any other 

relevant information they believe 

supports their claim, such as 

information regarding the medical care 

involved, the acts or omissions the 

claimant believes constitute 

malpractice, medical opinions from 


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non-DoD providers, and evidence of 

pain and suffering or other harm. 

(d) Substantiating the claim. Under 

section 2733a(b)(6), DoD is allowed to 

pay a claim only if it is substantiated. 

The claimant has the burden to 

substantiate the claim by a 

preponderance of the evidence. Upon 

receipt of a claim, DoD may require that 

the claimant provide additional 

information DoD believes is necessary 

for adjudication of the claim, including 

the submission of an expert opinion at 

the claimant’s expense. DoD may 

determine an expert opinion is not 

necessary when negligence is within the 

general knowledge and experience of 

ordinary laypersons, such as when a 

foreign object is unintentionally left in 

the body or an operation occurred on 

the wrong body part. 

(e) No discovery. There is no 

discovery process for adjudication of 

claims under this Part. However, 

claimants may obtain copies of records 

in DoD’s possession that are part of their 

personnel and medical records in 

accordance with DoD Instruction 

5400.11, ‘‘DoD Privacy and Civil 

Liberties Programs’’; DoD Instruction 

6025.18, ‘‘Health Insurance Portability 

and Accountability Act (HIPAA) Privacy 

Rule Compliance in DoD Health Care 

Programs,’’ and supplemental DoD 

issuances to those Instructions. 

Claimants are not entitled to attorney 

work product, attorney client privileged 

communications, material that is part of 

a DoD Quality Assurance Program 

protected under 10 U.S.C. 1102, 

predecisional material, or other 

privileged information. 

§ 45.5 Elements of payable claim: facilities 

and providers. 

(a) In general. This section describes 

some of the necessary elements of a 

payable claim. The health care involved 

must occur in a covered military 

medical treatment facility (MTF) and be 

provided by a DoD health care provider 

acting within the scope of employment. 

(b) Covered MTF. (1) As provided in 

section 2733a(b)(3) and (i)(1), the 

alleged act or omission constituting 

medical malpractice must have occurred 

in a covered MTF. For the purposes of 

this regulation, an MTF is a medical 

center, inpatient hospital, or ambulatory 

care center, as those facilities are 

described in 10 U.S.C. 1073d. Fixed 

dental clinics are also included. 

(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. As 

provided in section 2733a(i)(2), a DoD 

health care provider is a member of the 

uniformed services, DoD civilian 

employee, or personal services 

contractor of the Department (under 10 

U.S.C. 1091) authorized by DoD to 

provide health care services. A nonpersonal services contractor or a 

volunteer working in an MTF is not a 

DoD health care provider for purposes 

of a payable claim under this part. 

(d) Scope of employment. As 

provided in section 2733a(b)(2), for a 

claim to be payable under this part, the 

DoD health care provider whose 

negligent or wrongful act or omission is 

the basis of a claim 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. 

§ 45.6 Element of payable claim: negligent 

or wrongful act or omission. 

(a) In general. To establish the 

element of a negligent or wrongful act 

or omission, a member of a uniformed 

service (‘‘claimant’’) allegedly harmed 

incident to service by medical 

malpractice must prove by a 

preponderance of the evidence that one 

or more DoD health care providers 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 which 

proximately caused the injury or death. 

(b) Standard of care. The professional 

duty referred to in paragraph (a) of this 

section is a duty to 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. However, standard of 

care in the military context may be 

impacted by the particular setting and 

the availability of resources in that 

setting. 

(c) Breach of the standard of care. A 

breach referred to in paragraph (a) 

occurs if the health care provider or 

providers by act or omission did not 

meet the standard of care. 

(d) Presenting evidence of the 

standard of care. A claimant may 

present evidence to support what the 

claimant believes is the standard of care 

relevant to the care involved in the 

claim. 

(e) Presenting evidence of a failure to 

meet the standard of care. (1) A 

claimant may present evidence to 

support what the claimant believes 

demonstrates the failure of one or more 

DoD health care providers to meet the 

standard of care. That evidence may be 

based on the medical records of the 

patient involved and other documentary 

evidence of the acts or omissions of 

health care providers involved, 

including expert reports. 

(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. (1) 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, including information 

prepared by or on behalf of DoD in 

connection with adjudication of the 

claim. 

(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. (1) In a case otherwise 

payable under this part, a claimant must 

prove by a preponderance of evidence 

that a negligent or wrongful act or 

omission by one or more DoD health 

care providers was the proximate cause 

of the harm suffered by the member. 

(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 


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1Available at https://www.esd.whs.mil/Portals/ 

54/Documents/DD/issuances/dodi/ 

133218p.pdf?ver=2018-05-24-133105-050. 

be reduced by that proportion of the 

alternative cause(s). 

(b) Comparative negligence. A rule of 

modified comparative negligence will 

apply to claims under this part. If a 

claimant was contributorily negligent in 

relation to the health care provided, 

damages will be reduced by the 

proportion of fault assigned to the 

Service member. If the claimant’s own 

negligence constituted more than 50% 

of the fault, the claim is not payable. 

(c) Loss of chance or failure to 

diagnose. A claimant may recover for 

loss of chance for a more favorable 

clinical outcome in the diagnosis and 

treatment of his or her illness or injury. 

The claimant must prove by a 

preponderance of the evidence that one 

or more DoD health care providers in a 

covered MTF acting within the scope of 

employment had a professional duty to 

the claimant and by act or omission 

breached that duty and proximately 

caused harm. In proving that the 

claimant suffered harm, the claimant 

must prove that the lost chance for a 

better outcome or the failure to diagnose 

a condition is attributable to the 

provider or providers. The claimant 

must prove a substantial loss as opposed 

to a theoretical or de minimis loss. The 

portion of harm attributable to the 

breach of duty will be the percentage of 

chance lost in proportion to the overall 

clinical outcome. Damages will be 

calculated based on this portion of 

harm. 

(d) Information DoD will consider in 

assessing proximate cause. (1) In 

addition to the information submitted 

by the claimant, DoD may consider all 

relevant information in DoD records or 

information systems or otherwise 

available to DoD, including information 

prepared by or on behalf of DoD in 

connection with adjudication of the 

claim. 

(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. 

§ 45.8 Calculation of damages: disability 

rating. 

(a) In general. For certain purposes 

relating to calculating damages for a 

member in a claim under this part, DoD 

will use the disability rating established 

in the DoD Disability Evaluation System 

under DoD Instruction 1332.18 1 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. This rating is stated as a 

disability percentage under the VA 

Schedule for Rating Disabilities 

(VASRD) under 38 CFR part 4 or a 

successor provision. Under 10 U.S.C. 

1216a, DoD is required to use the 

VASRD for assessing the degree of 

disability of a member under the 

Disability Evaluation System. DoD will 

use it for purposes of this part as well. 

A VASRD-based disability percentage 

represents the Government’s estimate of 

the lost earning capacity attributable to 

an illness or injury incurred during 

military service. A Service member 

medically separated or retired through 

the Disability Evaluation System may 

receive distinct DoD and VA disability 

ratings. DoD will consider disability 

ratings, to the extent DoD deems 

pertinent, for other purposes relating to 

calculating damages, such as calculating 

loss of earning capacity and noneconomic damages. 

(b) Disability rating procedures. (1) If 

a claimant disagrees with the disability 

rating received in the DoD or VA 

disability evaluation or claims 

processes, the member must pursue the 

appeal opportunities available within 

the DoD and/or VA to change the 

member’s disability rating. 

(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. Economic damages are 

one component of a potential damages 

award. The claimant has the burden to 

prove the amount of economic damages 

by a preponderance of evidence. 

Estimates of future losses must be 

discounted to present value. 

(b) Elements of economic damages in 

personal injury cases. Elements of 

economic damage are limited to the 

following: 

(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) Loss of earning capacity, after 

deducting for the claimant’s personal 

consumption from the date of injury 

causing death until expiration of the 

claimant’s work-life expectancy, as 

substantiated by appropriate 

documentation. In addition, loss of 

retirement benefits is compensable and 

similarly discounted after appropriate 

deductions. Estimates 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. In 

addition to the information submitted 

by the claimant, DoD may consider all 

relevant information in DoD records or 

information systems or otherwise 

available to DoD, including assessments 

from appropriate documentary sources 

and experts available to DoD. 

§ 45.10 Calculation of damages: noneconomic damages. 

(a) In general. Non-economic damages 

are one component of a potential 

damages award. The claimant has the 

burden of proof on the amount of noneconomic damages by a preponderance 

of evidence. 


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(b) Elements of non-economic 

damages. Elements of non-economic 

damage are limited to the following: 

(1) Past and future conscious pain 

and suffering by the claimant. This 

element is physical discomfort as well 

as mental and emotional trauma or 

distress. Loss of enjoyment of life is 

compensable. The inability to perform 

daily activities that one performed prior 

to injury, such as recreational activities, 

is included in this element. DoD may 

request an interview of or statement 

from the member or other person with 

primary knowledge of the claimant. 

(2) Physical disfigurement. This 

element is impairment resulting from an 

injury to a member that causes 

diminishment of beauty or symmetry of 

appearance rendering the member 

unsightly, misshapen, imperfect, or 

deformed. DoD may require a medical 

statement and photographs, 

documenting the claimant’s condition. 

(c) Cap on non-economic damages. In 

any claim under this part, total noneconomic damages may not exceed a 

cap amount. The current cap amount is 

$500,000. Updates to cap amounts in 

subsequent years will be published 

periodically, consistent with changes in 

prevailing amounts in the majority of 

the States with non-economic damages 

caps. 

(d) Information DoD will consider in 

calculating non-economic damages. In 

addition to the information submitted 

by the claimant, DoD may consider all 

relevant information in DoD records or 

otherwise available to DoD, including 

assessments from appropriate 

documentary sources and experts 

available to DoD. 

§ 45.11 Calculation of damages: offsets for 

DoD and VA Government compensation. 

(a) In general. Total potential damages 

calculated under this Part, both 

economic and non-economic, are 

reduced by offsetting most of the 

compensation otherwise provided or 

expected to be provided by DoD or VA 

for the same harm that is the subject of 

the medical malpractice claim. The 

general rule is that prospective medical 

malpractice damage awards are offset by 

DoD or VA payments and benefits that 

are primarily funded by Government 

appropriations. However, there is no 

offset for U.S. Government payments 

and benefits that are substantially 

funded by the military member. 

(b) Eligibility for payments and 

benefits. In determining the offsets that 

are applied to a medical malpractice 

damages award under this part, DoD 

presumes that a claimant will receive all 

the payments and benefits for which the 

claimant is expected to be eligible, 

whether or not the claimant has taken 

steps to obtain the payment or benefit or 

ultimately receives such payment or 

benefit. A claimant may present 

evidence that he or she is not eligible for 

a payment or benefit to rebut the 

presumption. 

(c) Information considered. In 

determining offsets under this section, 

DoD will consider all data available in 

DoD records or information systems, 

other U.S. Government records systems, 

and other information available to DoD. 

This data may include information on 

military pay and allowances, Disability 

Evaluation System outcomes, VA 

disability claims, marital status, number 

and ages of dependents, survivor 

benefits, and other information. Access 

to all such information will be in 

accordance with the Privacy Act, 5 

U.S.C. 552a, and applicable 

implementing regulations. 

(d) Present value of future payments 

and benefits. In determining offsets 

under this section, DoD will estimate 

the present value of future payments 

and benefits. Many such payments and 

benefits in cases of disability or death 

are lifetime benefits for members or 

survivors. With respect to any lifetime 

payments or benefits that may terminate 

upon the remarriage of a surviving 

spouse, DoD will not assume a 

remarriage. Estimates will be based on 

actuarial information provided by the 

Chief Actuary, DoD Office of the 

Actuary, taking into consideration 

methods and assumptions approved by 

the DoD Board of Actuaries and DoD 

Medicare-Eligible Retiree Health Care 

Board of Actuaries, respectively, as of 

the recent actuarial valuation date. 

(e) Payment and benefit programs. 

The listings in this section of certain 

programs that offset and do not offset 

potential medical malpractice damages 

awards are not all-inclusive and are 

subject to adjustment as necessary to 

account for compensation otherwise 

provided by DoD or VA for the same 

harm that resulted from the medical 

malpractice. Because compensation 

programs are often changed by 

Congress, Federal agencies, or judicial 

decisions, DoD will annually review 

relevant programs and take account of 

any such changes for purposes of 

applying the rules of this section to the 

adjudication of claims under this part. 

(f) Payments and benefits that are 

offsets. Potential damage awards under 

this part are offset by the present value 

of the following payments and benefits: 

(1) Pay and allowances while a 

member remains on active duty or in an 

active status. 

(2) Disability retired pay in the case 

of retirement due to the disability 

caused by the alleged medical 

malpractice. 

(3) Disability severance pay in the 

case of non-retirement disability 

separation caused by the alleged 

medical malpractice. 

(4) Incapacitation pay. 

(5) Involuntary and voluntary 

separation pays and incentives. 

(6) Death gratuity. 

(7) Housing allowance continuation. 

(8) Survivor Benefit Plan. 

(9) VA disability compensation, to 

include Special Monthly Compensation, 

attributable to the disability resulting 

from the malpractice. 

(10) VA Dependency and Indemnity 

Compensation, attributable to the 

disability resulting from the 

malpractice. 

(11) Special Survivor Indemnity 

Allowance. 

(12) Special Compensation for 

Assistance with Activities of Daily 

Living. 

(13) Program of Comprehensive 

Assistance for Family Caregivers. 

(14) Fry Scholarship. 

(15) 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. 

(g) Payments and benefits that are not 

offsets. Potential awards under this Part 

are not offset by the present value of the 

following payments and benefits. 

(1) Servicemembers Group Life 

Insurance. 

(2) Traumatic Servicemembers Group 

Life Insurance. 

(3) Social Security disability benefits. 

(4) Social Security survivor benefits. 

(5) Prior Government contributions to 

a Thrift Savings Plan. 

(5) Commissary, exchange, and 

morale, welfare, and recreation facility 

access. 

(6) Value of legal assistance and other 

services provided by DoD. 

(7) Medical care provided while in 

active service or in an active status prior 

to death, retirement, or separation. 

§ 45.12 Initial and Final Determinations. 

(a) Denial of claim—deficient filing. If 

a claim does not contain the information 

required by § 45.4(b), DoD will issue an 

Initial Determination stating that DoD 

will issue a Final Determination 

denying the claim unless the deficiency 

is cured. 

(1) DoD will provide the claimant 30 

calendar days following receipt of the 

Initial Determination to cure the 

deficiency, unless an extension of time 

is granted for good cause. The date of 

receipt of the Initial Determination will 


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be presumed to be five 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. If a claim does not, based upon 

the information provided, state a claim 

cognizable under 10 U.S.C. 2733a or this 

interim final rule, DoD will issue an 

Initial Determination denying the claim. 

Such an Initial Determination may be 

appealed under the procedures in 

§ 45.13. 

(c) Denial of claim—absence of an 

expert report. Where applicable, if the 

claimant initially does not submit an 

expert report in support of his or her 

claim and DoD intends to deny the 

claim, DoD will issue an Initial 

Determination stating, without more, 

that DoD will issue a Final 

Determination denying the claim in the 

absence of an expert report or manifest 

negligence. 

(1) DoD will provide the claimant 90 

calendar days following receipt of the 

Initial Determination 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 five 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 

and will provide a brief explanation of 

the basis for the denial to the extent 

practicable. A Final Determination 

issued under this paragraph (c) may not 

be appealed. 

(d) Initial Determination. (1) Upon 

consideration of the information 

provided by the claimant and relevant 

information available to DoD, DoD will 

issue the claimant a written 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 a 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 brief explanation of the basis 

for the Initial Determination to the 

extent practicable. 

(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. DoD 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. 

§ 45.13 Appeals. 

(a) In general. This section describes 

the appeals process applicable to Initial 

Determinations under this part, which 

include Initial Determinations on 

Reconsideration. With the exception of 

Initial Determinations issued under 

§ 45.12(a), in any case in which the 

claimant disagrees with an Initial 

Determination, the claimant has a right 

to file an administrative appeal. The 

claimant should explain why he or she 

disagrees with the Initial Determination, 

but may not submit additional 

information in support of the claim 

unless requested to do so by DoD. An 

appeal must be received within 60 

calendar days of the date of receipt by 

the claimant/counsel of the Initial 

Determination, unless an extension of 

time is granted for good cause. The date 

of receipt of the Initial Determination 

will be presumed to be five calendar 

days after the date the Initial 

Determination was mailed or emailed, 

unless there is evidence to the contrary. 

If no timely appeal is received, DoD will 

issue a Final Determination. 

(b) Appeals Board. Appeals will be 

decided by an Appeals Board 

administratively supported by the 

Defense Health Agency. Although there 

may be, in DoD’s discretion, multiple 

offices that initially adjudicate claims 

under this part (such as offices in the 

Military Departments), there is a single 

DoD Appeals Board. The Appeals Board 

will consist of not fewer than three and 

no more than five DoD officials 

designated by the Defense Health 

Agency from that agency and/or the 

Military Departments who are 

experienced in medical malpractice 

claims adjudication. Appeals Board 

members must not have had any 

previous role in the claims adjudication 

under appeal. Appeals are decided on a 

written record and decisions will be 

approved by a majority of the members. 

There is no adversarial proceeding and 

no hearing. There is no opposing party. 

The Appeals Board may obtain 

information or assessments from 

appropriate sources, including from the 

claimant, to assist in deciding the 

appeal. The Appeals Board is bound by 

the provisions of this Part and will not 

consider challenges to them. 

(c) Burden of proof. The claimant on 

appeal has the burden of proof by a 

preponderance of evidence that the 

claim is substantiated in the written 

record considered as a whole. 

(d) Appeals Board decisions. (1) Every 

claimant will be provided a written 

Final Determination on the claimant’s 

appeal. The Final Determination may 

adopt by reference the Initial 

Determination or revise the Initial 

Determination, as appropriate. If the 

Final Determination revises the Initial 

Determination, DoD will provide a brief 

explanation of the basis for the revisions 

to the extent practicable. 

(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. 

§ 45.14 Final and conclusive resolution. 

(a) Administrative adjudication final. 

As provided in 10 U.S.C. 2735, the 

adjudication and settlement of a claim 

under this part is final and conclusive 

and not subject to review in any court. 

Unlike the FTCA, the Military Claims 

Act, 10 U.S.C. chapter 163, which 

provides the authority for this part, does 

not give Federal courts jurisdiction over 

claims. Further, no claim under this Part 

may be paid unless the amount tendered 

is accepted by the claimant in full 

satisfaction. 

(b) Additional terms of settlement 

agreement. (1) Settlement agreements 

under this part will incorporate the 

requirement of section 2733a(g)(1) that 

no attorney may charge, demand, 

receive, or collect for services rendered, 

fees in excess of 20 percent of any claim 

payment amount under this part. 

(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. 


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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations 32215 

§ 45.15 Other claims procedures and 

administrative matters. 

(a) Payment of damages. In the event 

damages are awarded, the claimant or 

the claimant’s estate is entitled to 

payment of those damages. 

(b) Communication through counsel. 

If the claimant is represented by 

counsel, all communications will be 

through the claimant’s counsel. 

(c) Remedies for filing false claims or 

making false statements. Remedies 

available to the United States for filing 

false claims with Federal agencies or 

making false statements to Federal 

agencies and officials are applicable to 

claims and statements made in 

connection with claims under this part. 

Applicable authorities include 31 U.S.C. 

3729 and 18 U.S.C. 1001. False claims 

and claims supported by false 

statements will be denied. 

(d) Reports to the Defense Health 

Agency. As provided in section 

2733a(e), not later than 30 calendar days 

after a Final Determination of medical 

malpractice or the payment of all or a 

portion of a claim under this part, a 

report documenting that determination 

is sent to the Director, Defense Health 

Agency to be used for all necessary and 

appropriate purposes, including those 

actions undertaken as part of DoD’s 

Clinical Quality Management Program. 

(e) Monitoring claims adjudications 

under this part. The General Counsel of 

the Defense Health Agency will monitor 

the performance of the claims 

adjudications structures and procedures 

under this part, including accounting 

for the number of claims processed 

under this part and the resolution of 

each claim and identifying means to 

enhance the effectiveness of the claims 

adjudication process. 

(f) Authority for actions under this 

part. To ensure consistency and 

compliance with statutory requirements, 

supplementation of the procedures in 

this part is not permitted without 

approval in writing by the General 

Counsel of the Department of Defense. 

The General Counsel of the Department 

of Defense, under DoD Directive 

5145.01, ‘‘General Counsel of the 

Department of Defense,’’ may delegate 

in writing authority for making Initial 

and Final Determinations, and other 

actions by DoD officials under this part. 

As used in this part, and at DoD’s 

discretion, ‘‘DoD’’ may include, but is 

not limited to, Military Departments. 

Dated: June 14, 2021. 

Patricia L. Toppings, 

OSD Federal Register Liaison, Department of 

Defense. 

[FR Doc. 2021–12815 Filed 6–16–21; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2021–0390] 

Safety Zones; Annual Event in the 

Captain of the Port Buffalo Zone 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

a safety zone located in Federal 

regulations for a recurring marine event. 

This action is necessary and intended 

for the safety of life and property on 

navigable waters during these events. 

During each enforcement period, no 

person or vessel may enter the 

respective safety zone without the 

permission of the Captain of the Port 

Buffalo. 

DATES: The regulations in 33 CFR 

165.939, Table 165.939, entry (a)(1), will 

be enforced from 9:45 p.m. to 11:15 p.m. 

on June 18, 2021. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email LCDR William Fitzgerald, Chief of 

Waterways Management, U.S. Coast 

Guard Marine Safety Unit Cleveland; 

telephone 216–937–0124, email 

william.j.fitzgerald@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the Safety Zones; 

Annual Events in the Captain of the Port 

Buffalo Zone listed in 33 CFR 165.939, 

Table 165.939, entry (a)(1), in 

Vermillion, OH, on all U.S. waters 

within a 420 foot radius of the fireworks 

launch site located at position 41°25′45′′ 

N and 082°21′54′′ W, (NAD 83) for the 

Festival of the Fish. 

Pursuant to 33 CFR 165.23, entry into, 

transiting, or anchoring within the 

safety zone during an enforcement 

period is prohibited unless authorized 

by the Captain of the Port Buffalo or a 

designated representative. Those 

seeking permission to enter the safety 

zone may request permission from the 

Captain of Port Buffalo via channel 16, 

VHF–FM. Vessels and persons granted 

permission to enter the safety zone shall 

obey the directions of the Captain of the 

Port Buffalo or a designated 

representative. While within a safety 

zone, all vessels shall operate at the 

minimum speed necessary to maintain a 

safe course. 

This notification of enforcement is 

issued under authority of 33 CFR 

165.939 and 5 U.S.C. 552(a). In addition 

to this notification of enforcement in the 

Federal Register, the Coast Guard will 

provide the maritime community with 

advance notification of this enforcement 

period via Broadcast Notice to Mariners 

or Local Notice to Mariners. If the 

Captain of the Port Buffalo determines 

that the safety zone need not be 

enforced for the full duration stated in 

this notification she may use a 

Broadcast Notice to Mariners to grant 

general permission to enter the 

respective safety zone. 

Lexia M. Littlejohn, 

Captain, U.S. Coast Guard, Captain of the 

Port Buffalo. 

[FR Doc. 2021–12840 Filed 6–16–21; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2021–0383] 

RIN 1625–AA00 

Safety Zone; M/V ZHEN HUA 26 

Transit; Everport Container Terminal, 

San Pedro, California 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Temporary final rule. 

SUMMARY: The U.S. Coast Guard is 

establishing a temporary moving safety 

zone around the M/V ZHEN HUA 26 

while it transits through the navigation 

channel during its transit to Everport 

Container Terminal, Berth 227, in San 

Pedro, California. This safety zone is 

necessary to protect personnel, vessels, 

and the marine environment from 

hazards associated with the arms of 

three ship-to-shore gantry cranes which 

will extend more than 200 feet out from 

the transiting vessel when the arms are 

lowered, and from the vessel’s stability 

condition due to an air draft greater than 

300 feet when the cranes are in the up 

position. Unauthorized persons or 

vessels are prohibited from entering 

into, transiting through, or remaining in 

the safety zone without permission of 

the Captain of the Port Los AngelesLong Beach or a designated 

representative. 

DATES: This rule is effective without 

actual notice from June 17, 2021, 

through 11:59 p.m. on June 21, 2021. 

For the purposes of enforcement, actual 

notice will be from 12:01 a.m. on June 

11, 2021, until June 17, 2021. 


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