10 U.S.C. § 2733a — Medical malpractice claims by members of the uniformed services
submitted 7 years ago by Pub. L. 116-92 to r/title-10-ARMED-FORCES · 1,374 words · no verdicts yet
The Secretary of Defense may pay qualifying claims by uniformed-service members for injury or death caused by Defense Department medical malpractice at covered military medical facilities. The section sets eligibility, limits, expert-opinion standards, regulations, denial explanations, attorney-fee limits, reports, and definitions.
(a) In general. Consistent with this section and Defense regulations, the Secretary may allow, settle, and pay* a claim against the United States for a uniformed-service member’s service-related injury or death caused by malpractice by a Defense health-care provider. (b) Requirements. A claim may be paid only if: (1) the affected member files it, or an authorized representative files for a deceased or incapacitated member; (2) a provider negligently or wrongfully acted or failed to act while performing medical, dental, or related care within employment; (3) the malpractice occurred at a covered military medical treatment facility; (4) it is filed in writing within two years after accruing; (5) no other law allows its settlement and payment; and (6) regulations substantiate it. (c) Liability. Defense is liable only for the compensable injury, loss, or damage attributable to its provider’s malpractice, and not for the claimant’s attorney fees. (d) Payment. For a meritorious claim over $100,000 otherwise payable, the Secretary may pay $100,000 and report the meritorious excess to Treasury for payment under 31 U.S.C. § 1304. Otherwise, the claimant must accept the amount offered in full satisfaction. (e) Reporting. Within 30 days after finding malpractice or paying all or part of a claim, Defense must report it to the Director of the Defense Health Agency for necessary and appropriate uses, including medical quality assurance. (f) Denials. For a denial, Defense must give detailed reasons, including expert reports and experts’ qualifications, and all records relied on for those reports, except medical-quality-assurance records (a term this section does not define). (g) Expert opinions. The evaluator must use an opinion from a board-certified specialist or, when board certification does not apply, a highly qualified expert in the relevant function. (h) Regulations. Defense must issue regulations. They must include timely and effective claim filing, receipt, investigation, evaluation, negotiation, settlement, payment, and other processing rules, including appeals. They must use uniform standards consistent with generally accepted standards used in most States under the Federal Tort Claims Act, regardless of location, military department, service, or foreign law for foreign claims. Those standards must address negligence or wrongdoing, causation, proof of duty, breach, and causation subject to Defense exclusions, and damage calculations. Other appropriate matters may also be included. Defense may first issue an interim final rule and, after considering public comments, a final rule within one year. (i) Attorney fees. An attorney may not charge more than 20 percent of a paid claim. An attorney who exceeds that limit, if recovery is obtained, may be fined up to $2,000, imprisoned up to one year, or both. (j) Annual reports. At least annually until 2028, Defense must report to the Senate and House Armed Services Committees the number processed, average resolution time, each resolution, the number denied for each unmet (b) requirement other than substantiation, and other information that may improve the process. (k) Definitions. “Covered military medical treatment facility” means a facility described in 10 U.S.C. § 1073d(b), (c), or (d). “Department of Defense health care provider” means an authorized uniformed-service member, Defense civilian employee, or Department personal-services contractor acting within employment. “Member of the uniformed services*” includes a reserve-component member when the claim concerns injury or death while in Federal status.
Consistent with this section and under such regulations as the Secretary of Defense shall prescribe under subsection (h), the Secretary may allow, settle, and pay* a claim against the United States for personal injury or death incident to the service of a member of the uniformed services* that was caused by the medical malpractice of a Department of Defense health care provider.
A claim may be allowed, settled, and paid under subsection (a) only if—
the claim is filed by the member of the uniformed services who is the subject of the medical malpractice claimed, or by an authorized representative on behalf of such member who is deceased or otherwise unable to file the claim due to incapacitation;
the claim is for personal injury or death caused by the negligent or wrongful act or omission of a Department of Defense health care provider in the performance of medical, dental, or related health care functions while such provider was acting within the scope of employment;
the act or omission constituting medical malpractice occurred in a covered military medical treatment facility;
the claim is presented to the Department in writing within two years after the claim accrues;
the claim is not allowed to be settled and paid under any other provision of law; and
the claim is substantiated as prescribed in regulations prescribed by the Secretary of Defense under subsection (h).
The Department of Defense is liable for only the portion of compensable injury, loss, or damages attributable to the medical malpractice of a Department of Defense health care provider.
The Department of Defense shall not be liable for the attorney fees of a claimant under this section.
If the Secretary of Defense determines, pursuant to regulations prescribed by the Secretary under subsection (h), that a claim under this section in excess of $100,000 is meritorious, and the claim is otherwise payable under this section, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treasury for payment under section 1304 of title 31.
Except as provided in paragraph (1), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction.
Not later than 30 days after a determination of medical malpractice or the payment of all or part of a claim under this section, the Secretary of Defense shall submit to the Director of the Defense Health Agency a report documenting such determination or payment to be used by the Director for all necessary and appropriate purposes, including medical quality assurance.
If a claim under this section is denied, the Secretary of Defense shall provide the claimant with detailed reasoning justifying the denial of the claim, including—
copies of any written reports prepared by any expert upon which the denial is based, and information regarding the qualifications of each such expert who provided an expert medical opinion; and
all records and documents relied upon in preparing such written reports, other than medical quality assurance records (as such term is defined in section 1102 of this title).
In using an expert medical opinion to evaluate a claim under this section, the Secretary of Defense shall use the opinion of—
an individual who is board-certified in the medical specialty with respect to that claim; or
if the claim involves medical, dental, or related health care functions for which board certification does not apply, an individual who is a highly qualified expert regarding the relevant medical, dental, or related health care function.
The Secretary of Defense shall prescribe regulations to implement this section.
Regulations prescribed by the Secretary under paragraph (1) shall include the following:
Policies and procedures to ensure the timely, efficient, and effective processing and administration of claims under this section, including—
the filing, receipt, investigation, and evaluation of a claim;
the negotiation, settlement, and payment of a claim;
such other matters relating to the processing and administration of a claim, including an administrative appeals process, as the Secretary considers appropriate.
Uniform standards consistent with generally accepted standards used in a majority of States in adjudicating claims under chapter 171 of title 28 (commonly known as the “Federal Tort Claims Act”) to be applied to the evaluation, settlement, and payment of claims under this section without regard to the place of occurrence of the medical malpractice giving rise to the claim or the military department or service of the member of the uniformed services, and without regard to foreign law in the case of claims arising in foreign countries, including uniform standards to be applied to determinations with respect to—
whether an act or omission by a Department of Defense 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;
whether the personal injury or death of the member was caused by a negligent or wrongful act or omission of a Department of Defense health care provider in the context of performing medical, dental, or related health care functions, considering the specific facts and circumstances;
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 the Secretary of Defense; and
calculation of damages.
Such other matters as the Secretary considers appropriate.
In order to implement expeditiously the provisions of this section, the Secretary may prescribe the regulations under this subsection—
by prescribing an interim final rule; and
not later than one year after prescribing such interim final rule and considering public comments with respect to such interim final rule, by prescribing a final rule.
No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 20 percent of any claim paid pursuant to this section.
Any attorney who charges, demands, receives, or collects for services rendered in connection with a claim under this section any amount in excess of the amount allowed under paragraph (1), if recovery be had, shall be fined not more than $2,000, imprisoned not more than one year, or both.
Not less frequently than annually until 2028, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on claims processed under this section that includes, with respect to the period covered by the report, the following:
The number of claims processed under this section.
The average timeline for resolving such claims.
The resolution of each such claim.
The number of claims that were denied based on the claim not meeting one or more requirement specified in subsection (b) (other than for not being substantiated pursuant to paragraph (6)), disaggregated by each such requirement.
Any other information that the Secretary determines may enhance the effectiveness of the claims process under this section.
In this section:
The term “covered military medical treatment facility” means a facility described in subsection (b), (c), or (d) of section 1073d of this title.
The term “Department of Defense health care provider” means a member of the uniformed services, civilian employee of the Department of Defense, or personal services contractor of the Department (under section 1091 of this title) authorized by the Department to provide health care services and acting within the scope of employment of such individual.
The term “member of the uniformed services” includes a member of a reserve component of the armed forces* if the claim by the member under this section is in connection with personal injury or death that occurred while the member was in Federal status.
Source credit: (Added Pub. L. 116–92, div. A, title VII, § 731(a)(1), Dec. 20, 2019, 133 Stat. 1457; amended Pub. L. 118–31, div. A, title VII, § 713, Dec. 22, 2023, 137 Stat. 302; Pub. L. 118–159, div. A, title VII, §§ 731, 732, Dec. 23, 2024, 138 Stat. 1955, 1956.)
- 2019Enacted · Pub. L. 116-92 · 133 Stat. 1457
- 2023Amended · Pub. L. 118-31 · 137 Stat. 302
- 2024Amended · Pub. L. 118-159 · 138 Stat. 1955, 1956
A history note hasn’t been published yet. The record shows enactment by Pub. L. 116-92 on 2019-12-20.
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