MAY 10, 2024 – The Department of Defense (DoD) published today a Final Rule in the Federal Register updating its regulation on the medical malpractice claims process for Active-Duty Service members.
The updated rule eliminates the offset requirement for payments for non-economic damages.
The updated regulation helps maximize benefits for Service members filing medical malpractice claims that may have occurred in military medical treatment facilities.
Under the previous regulation, all payments Service members receive from DoD and the Department of Veterans Affairs related to medical malpractice were used to offset the total claim amount.
Now, eligible claimants can receive without offset the full amount of non-economic damages, which include pain and suffering, physical discomfort, and loss of enjoyment of life.
This action directly responds to input from our Service members, Members of Congress, and other key stakeholders.
The Final Rule is effective immediately. All currently pending claims will be adjudicated using the updated calculation method.
The Final Rule can be found at https://www.govinfo.gov/content/pkg/FR-2024-05-10/pdf/2024-10130.pdf.
Medical Malpractice Claims by Members of the Uniformed Services
The DoD is finalizing amendments to apply offsets for payments made by the U.S. Government for medical malpractice claims to potential economic damages only and not to total potential damages.
Under this rule total potential damages will no longer be reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or the Department of Veterans Affairs (VA) for the same harm that is the subject of the medical malpractice claim.
Instead, only economic damages will be reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or the VA for the same harm that is the subject of the medical malpractice claim.
This rule also clarifies future lost earnings may be awarded until the time DoD determines that the claimant is, or is expected to be, medically rehabilitated and able to resume employment; in cases of permanent incapacitation, until expiration of the claimant’s work-life expectancy; or, in cases of death, until the expiration of the claimant’s worklife expectancy, after deducting for the claimant’s personal consumption.
This final rule is effective May 10, 2024.