National Defense Authorization Act 2020 (NDAA) signed into law by President Trump on December 20, 2019 does not change or repeal the Feres doctrine but it authorizes for the first time for the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death of a member of the uniformed services that was the result of medical malpractice caused by a Department of Defense health care provider.
In Feres v. United States, 340 U.S. 135 (1950), the United States Supreme Court held that the Federal Tort Claims Act (“FTCA”), which effected a broad waiver of sovereign immunity rendering the United States liable for the tortious acts of its employees “in the same manner and to the same extent as a private individual under like circumstances” (28 U.S.C. § 2674), does not extend to “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”
Over time, the Supreme Court has articulated three policy rationales supporting the Feres doctrine: 1) the distinctively federal nature of the relationship between the Government and the armed forces requires a uniform system of compensation for soldiers stationed around the country and around the world; 2) a generous compensation scheme for soldiers (the Veterans’ Benefits Act) serves as an ample alternative to tort recovery; and 3) permitting military personnel to sue the armed forces would endanger discipline.
Because of extensive criticism of the Feres doctrine and its underlying justifications, courts have shied away from attempts to apply these policy rationales. Instead, when determining whether an injury occurred “incident to service,” thereby implicating the Feres doctrine, courts engage in a case-specific analysis focusing on four factors: (1) the place where the negligent act occurred, (2) the duty status of the plaintiff when the negligent act occurred, (3) the benefits accruing to the plaintiff because of the plaintiff’s status as a service member, and (4) the nature of the plaintiff’s activities at the time the negligent act occurred.
Courts have consistently applied the Feres doctrine to bar medical malpractice claims predicated on treatment provided at military hospitals to active duty service members.
NATIONAL DEFENSE AUTHORIZATION ACT 2020
SEC. 731. AUTHORIZATION OF CLAIMS BY MEMBERS OF THE UNIFORMED SERVICES AGAINST THE UNITED STATES FOR PERSONAL INJURY OR DEATH CAUSED BY MEDICAL MALPRACTICE.
(a) MEDICAL MALPRACTICE CLAIMS.—
(1) IN GENERAL.—Chapter 163 of title 10, United States Code, is amended by inserting after section 2733 the following new section:
‘‘§ 2733a. Medical malpractice claims by members of the uniformed services
‘‘(a) IN GENERAL.—Consistent with this section and under such regulations as the Secretary of Defense shall prescribe under subsection (f), the Secretary may allow, settle, and pay a claim againstthe 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.
‘‘(b) REQUIREMENT FOR CLAIMS.—A claim may be allowed, settled, and paid under subsection (a) only if—
‘‘(1) 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;
‘‘(2) 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;
‘‘(3) the act or omission constituting medical malpractice occurred in a covered military medical treatment facility;
‘‘(4) the claim is presented to the Department in writing within two years after the claim accrues;
‘‘(5) the claim is not allowed to be settled and paid under any other provision of law; and
‘‘(6) the claim is substantiated as prescribed in regulations prescribed by the Secretary of Defense under subsection (f).
‘‘(c) LIABILITY.—(1) 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.
‘‘(2) The Department of Defense shall not be liable for the attorney fees of a claimant under this section.
‘‘(d) PAYMENT OF CLAIMS.—
(1) If the Secretary of Defense determines, pursuant to regulations prescribed by the Secretary under subsection (f), 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.
‘‘(2) 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.
‘‘(e) REPORTING MEDICAL MALPRACTICE.—
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.
(1) The Secretary of Defense shall prescribe regulations to implement this section.
‘‘(2) Regulations prescribed by the Secretary under paragraph (1) shall include the following:
‘‘(A) Policies and procedures to ensure the timely, efficient, and effective processing and administration of claims under this section, including—
‘‘(i) the filing, receipt, investigation, and evaluation of a claim;
‘‘(ii) the negotiation, settlement, and payment of a claim;
‘‘(iii) such other matters relating to the processing and administration of a claim, including an administrative appeals process, as the Secretary considers appropriate.
‘‘(B) 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—
‘‘(i) 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;
‘‘(ii) 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;
‘‘(iii) 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
‘‘(iv) calculation of damages.
‘‘(C) Such other matters as the Secretary considers appropriate.
‘‘(3) In order to implement expeditiously the provisions of this section, the Secretary may prescribe the regulations under this subsection—
‘‘(A) by prescribing an interim final rule; and
‘‘(B) 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.
‘‘(g) LIMITATION ON ATTORNEY FEES.—(1) 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.
‘‘(2) 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.
‘‘(h) ANNUAL REPORT.—Not less frequently than annually until 2025, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report—
‘‘(1) indicating the number of claims processed under this section;
‘‘(2) indicating the resolution of each such claim; and
‘‘(3) describing any other information that may enhance the effectiveness of the claims process under this section.
‘‘(i) DEFINITIONS.—In this section:
‘‘(1) COVERED MILITARY MEDICAL TREATMENT FACILITY.—
The term ‘covered military medical treatment facility’ means a facility described in subsection (b), (c), or (d) of section 1073d of this title.
‘‘(2) DEPARTMENT OF DEFENSE HEALTH CARE PROVIDER.—
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.
‘‘(3) MEMBER OF THE UNIFORMED SERVICES.—
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.’’.
(2) CLERICAL AMENDMENT.—
The table of sections at the beginning of chapter 163 of such title is amended by inserting after the item relating to section 2733 the following new item: later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives a briefing on the development of regulations under section 2733a(f) of title 10, United States Code, as added by subsection (a)(1).
(c) CONFORMING AMENDMENTS.—
(1) Section 2735 of such title is amended by striking ‘‘2733,’’ and inserting ‘‘2733, 2733a,’’.
(2) Section 1304(a)(3)(D) of title 31, United States Code, is amended by striking ‘‘2733,’’ and inserting ‘‘2733, 2733a,’’.
(d) EFFECTIVE DATE AND TRANSITION PROVISION.—
(1) EFFECTIVE DATE.—
The amendments made by this section shall apply to any claim filed under section 2733a of such title, as added by subsection (a)(1), on or after January 1, 2020.
(2) TRANSITION.—Any claim filed in calendar year 2020 shall be deemed to be filed within the time period specified in section 2733a(b)(4) of such title, as so added, if it is filed within three years after it accrues.
If you or a loved one suffered injury (or worse) as a result of medical malpractice while in the U.S. military, you should promptly consult with a military medical malpractice lawyer who handles militray medical malpractice claims and who may investigate your militray medical malpractice claim for you and represent you or your loved one in a military medical malpractice claim, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find militray medical malpractice claim attorneys who may assist you.
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