An “interim final rule” published in the Federal Register on June 17 details how servicemembers can file medical malpractice claims against DoD – a change to longstanding policy made possible by MOAA-backed legislation in 2019.

The FY 2020 National Defense Authorization Act (NDAA) included language from the Sergeant First Class Richard Stayskal Military Medical Accountability Act, supported by MOAA and other veterans and military advocacy groups, which allows servicemembers or their representatives to seek compensation for harm caused by a DoD health care provider in certain military treatment facilities. This reversed, at least in part, the so-called “Feres Doctrine,” which had been in place since a 1950 court ruling.

Claims have been accepted since early 2020, with servicemembers filing 227 malpractice claims with a potential reported value of up to $2.16 billion in damages as of February 2021. But those claims had yet to be adjudicated as DoD finalizes its claim process.

The rules published June 17 don’t take effect until July 19. They can be viewed in full at this link (PDF). Military.com first reported on the rules June 16.

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Among the details:

• Servicemembers have two years to file a claim from when the alleged malpractice took place, or from “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.”
  
  
• Reservists are eligible to file claims, but only if the malpractice occurred in connection with an ailment suffered while the servicemember was in federal duty status (Title 10 orders).
  
  
• “Non-economic damages” – awards related to pain and suffering, for example – are capped at $500,000.
  
  
• All awards may be offset by other compensation paid to the servicemember for the same harm caused by the medical malpractice, to include disability severance or disability retired pay; VA benefits, to include Dependency and Indemnity Compensation (DIC); and future TRICARE benefits. They are not offset by programs requiring servicemember contributions, such as Servicemembers Group Life Insurance (SGLI).
  
  
• Any appeals must be filed within 60 days to an appeals board supported by the Defense Health Agency (DHA), which would have the power to uphold or reverse a previous ruling, or modify the awarded compensation. The board’s decision would be final.

Where to File

Servicemembers or their representatives can file claims with their respective department, per the rule:

• Army: File to 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, MD 20755, ATTN: Tort Claims Division.
• Navy: File to the Office of the Judge Advocate General, Tort Claims Unit, 9620 Maryland Avenue, Suite 205, Norfolk, VA 23511–2949. Details and forms are available at https://www.jag.navy.mil/.
• Air Force: File to Office of the Staff Judge Advocate at the nearest Air Force base or mail to AFLOA/JACC, 1500 W Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762. More information is available at (240) 612-4620 (DSN 612-4620).