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self-study / Torts

A new process for medical malpractice claims against the military

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council' Veterans and Military Families Subcommittee. She is a member of the American Bar Association's Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association's Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets' Women's Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results.

"...a riddle, wrapped in a mystery, inside an enigma..."

-- Winston Churchill

The United States government enjoyed sovereign immunity until the enactment of the Federal Tort Claims Act in 1946. The statute was passed after a military plane maneuvering through heavy fog in Manhattan in 1945 swerved to avoid the Chrysler Building and went straight into the Empire State Building, causing the loss of many lives and immense property damage.

So when army Lieutenant Rudolph Feres was killed in a barracks fire resulting from negligence by the military shortly after the FTCA went into effect, his family could make a claim against the military, right? Well, the Lieutenant's family tried. In Feres v. United States, 340 U.S. 135 (1950), the U.S. Supreme Court held that, despite the FTCA, the government is not liable for injuries to members of the armed forces sustained "in the course of activity incident to service." This became known as the now-infamous "Feres doctrine."

Fast-forward to 2020, and the National Defense Authorization Act was enacted to authorized members of the uniformed services to file claims for personal injury or death caused by Department of Defense health care providers. This summer, the Pentagon finally issued regulations for that claims process. 10 U.S.C. 2733a; 32 CFR 45; 86 Fed.Reg. 32194-01 (June 17, 2021).

There's an old military saying: "If the army wanted you to have a wife, it would have issued you one, Soldier." Perhaps the modern version should be: "If the military really wanted you to have a medical malpractice claim, it wouldn't have fought so long to keep the Feres doctrine in place and authored such one-sided, byzantine regulations."

It took seven decades to open the first tiny crack in the Feres doctrine. What remains to be seen is how lawyers will be able to anticipate their risk or explain potential outcomes of medical malpractice claims to their clients. Below, I will give you some highlights of this new malpractice claims procedure.

Health care personnel and medical treatment facility

For claims under the new law, DOD personnel and contractors acting within the scope of their employment or duties must have delivered the negligent treatment. This includes members of the uniformed services, DOD civilian employees and personnel services contractors authorized by the DOD to render health care services. 32 CFR 45.5.

The alleged malpractice must have occurred in a "medical treatment facility" -- i.e., a DOD medical center, inpatient hospital, or ambulatory care center. Fixed dental clinics are also included. A 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 military treatment facility. 10 U.S.C. 1073d; 32 CFR 45.5.

Who may file a claim?

Third-party claims are not allowed. Only a uniformed service member or an authorized representative on behalf of a member who is deceased or otherwise unable to file the claim due to incapacitation may file a claim. In some situations, a member of the Reserves may file a claim. A member of the National Guard of the United States who received the medical treatment while on federal duty may file a claim as well. 32 CFR 45.3.

Incident to service

The injury or illness for which the service member was receiving medical treatment when the alleged malpractice happened must have been "incident to service." Generally, this means while on active duty. More specifically, it refers to all harm resulting from combat injuries, training mishaps, motor vehicle accidents and naturally occurring diseases. For members on active duty, almost any injury or illness arising out of medical care received at a military treatment facility by a DOD health care provider is considered incident to service. But there are exceptions, such as when the service member is absent without leave. 32 CFR 45.1, 45.3.

Time and content of a claim

A written claim must be presented to the DOD within two years after the claim accrues. Timeliness of receipt will be determined by the postmark. A claim accrues as of the latter of the of the act or omission by a DOD health care provider that is the basis of the malpractice claim; or, the date on which the claimant knew, or with the exercise of reasonable diligence should have known, of the injury and that malpractice was the possible cause. 32 CFR 45.2(c).

A claim must include the factual basis for the claim, including identification of the conduct constituting malpractice, a demand for a specified dollar amount, and an affidavit affirming an attorney's authority if the claim is filed by an attorney or representative. If the claimant is not represented by an attorney, and unless the malpractice is within the general knowledge and experience of ordinary lay persons, an affidavit from the claimant affirming consultation with a health care professional who opined that a DOD health care provider breached the standard of care that caused the harm is required. 32 CFR 45.4.

Where to file a claim

Claims must be submitted to the military department of the service member.

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 (the Marines are part of the Navy): Information, directions and forms for filing a claim may be found here. 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.

No discovery -- even of some documents considered by the DOD in evaluating the claim

There is no discovery process for the adjudication of claims. The claimant is not entitled to pre-decisional material considered by the DOD. However, the claimant may obtain copies of records in the DOD's possession that are part of the claimant's personnel and medical records. Also, the claimant is required to identify health care providers and provide medical releases if the DOD requests them. 32 CFR 45.4.

In evaluating the claim, the DOD will access what it considers to be pertinent DOD records and information in the claimant's personnel and medical records. It will also consider "all relevant information in DoD records ... or otherwise available to DoD," including medical quality assurance records. 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. 32 CFR 45.4, 45.6, 45.7.

Burden

The claimant has the burden to substantiate the claim by a preponderance of the 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 service member. The evidence may be based on the medical records of the patient involved and other documentary evidence of the acts or omissions of the health care providers involved, including expert reports. The DOD may require the claimant to provide additional information, including the submission of an expert report at the claimant's expense. The DOD may determine an expert opinion is not necessary when negligence is within the general knowledge and experience of ordinary lay persons, such as when a foreign object is unintentionally left in the body or an operation occurred on the wrong body part. 32 CFR 45.4. 45.6, 45.7, 45.9.

Damages (this part of the process is undecipherable)

No matter how much counsel studies and prepares for making a medical malpractice claim, a certain part of the process will remain a total mystery. Not only will the military have access to documents that claimant's counsel will never see, but in calculating damages, it will use its own disability rating for fitness for duty when deciding the amount of the award. The DOD Disability Evaluation System is purportedly found under DOD Instruction 1332.18. Good luck in figuring it out.

If the DOD's disability rating results in the service member being separated from the military, the member "may" receive a Department of Veterans Affairs rating. The DOD will consider these disability ratings "to the extent the DoD deems pertinent, for other purposes relating to calculating damages, such as calculating loss of earning capacity and non-economic damages." 32 CFR 45.8(a).

The lack of openness and obstacles within the process continues. Should the medical malpractice claimant have a disability determination pending from either the DOD or the VA, the "DoD may, in its discretion, hold in abeyance the [malpractice] claim ... pending the outcome of the disability evaluation or claims process." 32 CFR 45.8 (b)(2).

There's more. Should the service member not be given a DOD or VA disability rating, the DOD will use the VASRD standard for assessing the degree of disability of the member relevant to the medical malpractice claim and the amount to be paid. The acronym stands for Veteran Affairs Schedule for Rating Disabilities. On the internet, I found a document: "The VASRD: Military Disability made easy." It says each disability is assigned a four-digit code, but some conditions must be rated analogously or by the symptoms of the condition. VASRD is meant to regulate the amount of compensation received for each disability. 32 CRF 45.8.

Cap on noneconomic damages

Damages for noneconomic injuries or losses may not exceed a cap amount. The current cap amount is $500,000. Updates on the amount of the cap will be published periodically. 32 CFR 45.10(c).

Offsets and deductions

Both economic and noneconomic damages will be reduced by offsetting most of the compensation otherwise provided by the DOD or the VA for the same harm that is the subject of the malpractice claim. There is no offset for U.S. government payments and benefits that are substantially funded by the military member. Nor will a deduction be made for payments by Traumatic Servicemembers Group Life Insurance, Social Security disability or survivor benefits and other payors. 32 CFR 45.11.

However, the service member doesn't actually have to receive the amounts that will be offset because "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." 32 CFR 45.11(b).

There are other deductions the DOD will make. To the extent other causes contributed to the personal injury or death that is the subject of the medical malpractice claim, any recovery will be reduced. Thus, it will be reduced for the portion of the injury that was pre-existing, and for the claimant's own negligence. If the claimant's own negligence constituted more than 50% of the fault, the claim will result in no payment. 10 U.S.C. 2733a(c)(1); 32 CFR 45.7.

Present cash value

The DOD will estimate the present value of future payments and benefits. Estimates will be based on actuarial information provided by the DOD's chief actuary "taking into consideration methods and assumptions approved by the DoD Board of Actuaries and DoD Medicare-Eligible Retiree Health Care Board of Actuaries." Additionally, because compensation programs are often changed by Congress and federal agencies, DOD will also "annually review" and take such changes into account. 32 CFR 45.11(d)(e). Whether or not there will be clawbacks is not stated in the new regulations.

Attorney fees and costs

"No attorney may charge, demand, receive, or collect for services rendered, fees in excess of 20 percent of any claim amount under this part." 32 CFR 45.14. No costs will be awarded. 32 CFR 45.2.

There is no hearing

The claims process does not involve any adversarial proceeding. Claimants will receive an initial determination by certified letter or email. The initial determination will either deny the claim or grant it with an offer of a settlement amount. If the claim is denied and the reason for denial can be cured, the claimant will be given an opportunity to do that. 32 CFR 45.2, 45.12.

Reconsideration and appeal

The claimant will be able to request reconsideration of the damages amount upon identifying a clear error in the damages calculation. 32 CFR 45.12. That might prove to be a bit tough since the claimant will not have access to the documents used to calculate those damages.

There is an appeals process, but it's purely administrative and in-house. Thus, the military will luxuriate in isolation, with absolutely no judicial oversight. An Appeals Board decision is final. 10 U.S.C. 2735, 32 CFR 45.13. Since the Appeals Board may adjust a settlement downward as appropriate, claimants will likely think more than twice before appealing on the ground of inadequate damages.

The Navy Times recently wrote about the denial of a claim filed by the family of a sailor who killed himself in a military jail. The claim alleged the sailor received subpar mental healthcare from the navy, and that army jailors issued him the belt he used to take his life. An appeal is planned, but it doesn't sound hopeful. The family's attorney stated: "This kind of self-protective response is exactly what we can expect with the new law, with the U.S. Defense Department making its own rules, applying its own definitions and determining claims behind a curtain without transparency."

Conclusion

In addition to the above offsets and restrictions, the regulations contain exemptions for due care, discretionary function, quarantine, combatant activities, FTCA and breach of medical confidentiality. Plus, they exclude claims for all intentional torts, negligent infliction of emotional distress, wrongful death, wrongful life, lack of informed consent, negligent credentialing as well as joint and several liability theories.

Since the claims will be handled by each branch of the military, it can be expected there will be a lack of uniformity in claims processing. Add to that the fact that military personnel are frequently transferred, and one can predict the right hand won't know what the left hand is doing.

These regulations are stacked in favor of the house. It will be interesting to see how many service members who are the victims of malpractice actually recover something. 

#1047

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