Medical Malpractice Claims by Members of the Uniformed Services rule (2022)

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The Medical Malpractice Claims by Members of the Uniformed Services rule is a significant rule issued by the U.S. Department of Defense (DoD) effective September 26, 2022, that finalized the implementation of requirements of the National Defense Authorization Act (NDAA), pursuant to the (NDAA) and Title 10 U.S.C. 2733a(f).[1]

HIGHLIGHTS
  • Name: Medical Malpractice Claims by Members of the Uniformed Services
  • Action: Final rule
  • Type of significant rule: Other significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

    The 2020 National Defense Authorization Act (NDAA), signed into law on December 20, 2019, introduced Section 731, allowing 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 provider in certain military medical treatment facilities. This is a significant change from the historical limitations imposed by the Feres doctrine, which prevented active-duty military personnel from suing the government for personal injuries suffered incident to service. The 2020 NDAA permits service members to bring administrative claims for medical malpractice compensation, with substantiated claims up to $100,000 paid directly by the DoD, and claims exceeding this amount reviewed and paid by the Treasury Department, within a two-year filing window.

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ DoD is publishing this rule to finalize the implementation of 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 health care provider 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.[2] ”

    [1]

    Summary of provisions

    This rule outlines the criteria and procedures for filing claims related to malpractice by U.S. Department of Defense (DoD) health care providers. It specifies who may file a claim (typically a member of a uniformed service harmed incident to service), the involvement of DoD health care providers, the location of malpractice occurrence (in a military medical treatment facility), the filing process, records considered, burden of proof on the claimant, substantiation of the claim, determining causation and liability, calculation of economic and non-economic damages, and the procedures for initial decision and administrative appeals through a DoD appeals board.

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the Medical Malpractice Claims by Members of the Uniformed Services rule states that OMB deemed this rule significant, but not economically significant:

    “ This final rule has been determined to be a significant regulatory action, although not economically significant.[2] ”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Federal Register, "Medical Malpractice Claims by Members of the Uniformed Services rule," August 26, 2022
    2. ↑ 2.0 2.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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