Medical Malpractice Claims by Members of the Uniformed Services

By Capt. Mario Franke, Fort Bliss Legal Assistance Office

On June 17, 2021, the Department of Defense issued an interim final rule in the Federal Register that implements requirements of the National Defense Authorization Act for Fiscal Year 2020. One of these requirements permits members of the uniformed services, or their authorized representatives, to file claims for personal injury or death caused by DOD health care providers in certain military medical treatment facilities. Because Federal courts do not have jurisdiction to consider these claims, DOD issued this rule to provide uniform standards and procedures for considering and processing these actions. This process is the only process for service members to bring medical malpractice claims related to their service. A service member may not challenge a final determination or the amount of any damages calculation contained in a final determination in court.

The interim 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);”
  • 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 non-economic 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).

The service member’s claim must provide, in writing, the reason why he or she believes a DOD health care provider committed malpractice and the amount of money he or she believes he or she should receive. No specific form or format is required. Any written claim will suffice provided it includes the following:

  • 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);
  • A demand for a specified dollar amount;
  • Signature of the claimant or claimant's duly authorized agent or legal representative;
  • 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;
  • 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,
  • 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.

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.

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”; and DOD Instruction 6025.18, “Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule Compliance in DOD Health Care Programs.”   Please note that 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.

The service member should submit the claim to their Military Department as follows:

  • 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 U.S. 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, Maryland 20762. POC: Medical Law Branch, AFLOA/JACC (240) 612-4620 or DSN 612-4620.

Generally, the service member must file their claim by the latter of (1) two years from the date of the injury or death; or (2) the date they 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.

Once the service member files their claim, DOD will locate medical records held by DOD and VA and review that claim to determine whether malpractice occurred.

Once DOD completes its review of the service member’s claim, the service member will be issued an initial determination. This initial determination will state either that their claim is granted and offer them an amount of money in settlement of that claim, or will state that the claim is denied.

A settlement does not entitle the service member to any new benefits from DOD or the VA. A settlement will not cause the service member to lose any DOD or VA benefits, whether at the time of the settlement or in the future.

If DOD has made a clear error in the calculation of the amount of money, the service member is offered to settle their claim, the service member may request reconsideration. The reconsideration process was intended to fix minor issues without requiring the service member to file an appeal. The service member must file their request for reconsideration within 60 days of receipt of an initial determination.

If a service member disagrees with an initial determination, he or she may generally file an administrative appeal. A service member must file their appeal within 60 days of receipt of an initial Determination. If the service member does not file an appeal, DOD will issue a final determination. A service member may not submit additional information in support of his or her claim on appeal. DOD will ask the service member for additional information if it is needed.

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.

To schedule an appointment to speak with a Legal Assistance attorney at Fort Bliss regarding this issue, please schedule an appointment with the Legal Assistance office by sending an email to usarmy.bliss.hqda-otjag.mesg.bliss-legal-assistance-office@mail.mil.