10 U.S.C. § 2733a — Medical malpractice claims by members

Page 2189 TITLE 10—ARMED FORCES § 2733a Editorial Notes AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283 substituted ‘‘Marine Corps, Space Force,’’ for ‘‘Marine Corps,’’ in par. (2) and in concluding provisions. 1996—Subsec. (d). Pub. L. 104–316 substituted ‘‘Sec- retary of the Treasury’’ for ‘‘Comptroller General’’. 1984—Subsec. (a). Pub. L. 98–564, § 1(1), substituted ‘‘Chief Counsel’’ for ‘‘chief legal officer’’ and ‘‘$100,000’’ for ‘‘$25,000’’ in provisions preceding par. (1). Subsec. (d). Pub. L. 98–564, § 1(2), amended subsec. (d) generally, substituting ‘‘$100,000’’ for ‘‘$25,000’’ and pro- visions requiring Secretary to report excess to the Comptroller General for provisions requiring reporting to Congress. Subsec. (g). Pub. L. 98–564, § 1(3), substituted provi- sions permitting officers and employees of Secretary concerned to settle claims not otherwise payable under this section in amounts not to exceed $25,000 and pro- viding for an appeal to Secretary concerned or his des- ignee for provisions which provided for delegation of claims settlement authority by Secretary for cases not to exceed $5,000 and for appeal therefrom. 1980—Subsec. (f). Pub. L. 96–513 substituted ‘‘National Oceanic and Atmospheric Administration’’ for ‘‘Envi- ronmental Science Services Administration’’. 1974—Subsec. (a). Pub. L. 93–336, § 1(1), substituted ‘‘$25,000’’ for ‘‘$15,000’’. Subsec. (d). Pub. L. 93–336, § 1(2), substituted ‘‘$25,000’’ for ‘‘$15,000’’ wherever appearing. Subsec. (g). Pub. L. 93–336, § 1(3), substituted ‘‘$5,000’’ for ‘‘$2,500’’. 1970—Subsec. (a). Pub. L. 91–312, § 2(a), substituted ‘‘$15,000’’ for ‘‘$5,000’’. Subsec. (d). Pub. L. 91–312, § 2(b), substituted ‘‘$15,000’’ for ‘‘$5,000’’ wherever appearing. 1968—Subsec. (a). Pub. L. 90–525, § 1, substituted ‘‘Sec- retary concerned’’ for ‘‘Secretary of a military depart- ment’’, and authorized the Chief Legal Officer of the Coast Guard to settle claims, settlement of claims for damage or loss to personal property in possession of the Coast Guard, and settlements when the torts are caused by civilian officers or employees and members of the Coast Guard when acting within scope of employ- ment or otherwise incident to noncombat activities of the Coast Guard. Subsec. (b)(4). Pub. L. 90–522, § 1(1), authorized appli- cation of local law in determining effect of claimant’s contributory negligence. Subsec. (d). Pub. L. 90–525, § 5, struck out ‘‘of the mili- tary department’’ after ‘‘Secretary’’. Subsec. (g). Pub. L. 90–525, § 3, increased limitation on amount of settlement from $1,000 to $2,500, struck out ‘‘military’’ before ‘‘department concerned’’, and pro- vided for appeals to Secretary concerned, or his des- ignee, from determinations delegating authority to set- tle claims to an officer of an armed force. See Pub. L. 90–522, § 1(2), hereunder, for identical provision for ap- peals to Secretary concerned. Pub. L. 90–522, § 1(2), provided for appeals to Secretary concerned, or his designee, from determinations dele- gating authority to settle claims to an officer of an armed force. Subsec. (h). Pub. L. 90–525, § 4, added subsec. (h). 1966—Subsec. (f). Pub. L. 89–718 substituted ‘‘Environ- mental Science Services Administration’’ for ‘‘Coast and Geodetic Survey’’. 1958—Subsec. (a). Pub. L. 85–729, § 1(1)(A), substituted ‘‘the Judge Advocate General of an armed force under his jurisdiction, if designated by him, may settle, and pay in an amount not more than $5,000’’ for ‘‘any officer designated by him may settle, and pay in an amount not more than $1,000’’. Subsec. (b). Pub. L. 85–861, § 1(54)(A), (B), in cl. (1), substituted ‘‘two years’’ for ‘‘one year’’ in three places and included claims accruing in time of armed conflict, and inserted sentence providing for the determination of dates of the beginning and ending of an armed con- flict. Subsec. (c). Pub. L. 85–861, § 1(54)(C), substituted pro- visions prohibiting payment for reimbursement for medical, hospital, or burial services furnished at the expense of the United States for provisions which pro- hibited allowance of claims for personal injury or death for more than the cost of reasonable medical, hospital, and burial expenses actually incurred, and not other- wise furnished or paid by the United States. Subsec. (d). Pub. L. 85–729, § 1(1)(B), substituted provi- sions authorizing partial payments on claims over $5,000 for provisions which authorized the Secretary of the military department concerned to report a claim for more than $1,000 to Congress for its consideration. Subsec. (e). Pub. L. 85–729, § 1(1)(B), substituted ‘‘Ex- cept as provided in subsection (d), no claim may be paid under this section’’ for ‘‘No claim may be paid under subsection (a)’’. Subsec. (g). Pub. L. 85–729, § 1(1)(C), added subsec. (g). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a Amendment note under section 101 of this title. REPEALS The directory language of, but not the amendment made by, Pub. L. 89–718, § 8(a), Nov. 2, 1966, 80 Stat. 1117, cited as a credit to this section, was repealed by Pub. L. 97–295, § 6(b), Oct. 12, 1982, 96 Stat. 1314. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. CLAIMS FOR INJURY OR DEATH ACCRUED BEFORE MARCH 30, 1956 Pub. L. 85–861, § 17, Sept. 2, 1958, 72 Stat. 1558, dis- allowed claims for personal injury or death under sec- tion 2733 of this title, for more than the cost of reason- able medical, hospital, and burial expenses actually in- curred if the claim accrued before March 30, 1956. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Public Health Service, see note set out under section 802 of this title. § 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 (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 med- ical 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 author- ized representative on behalf of such member Page 2190 TITLE 10—ARMED FORCES § 2733a 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 ac- crues; (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 (h). (c) LIABILITY.—(1) The Department of Defense is liable for only the portion of compensable in- jury, loss, or damages attributable to the med- ical malpractice of a Department of Defense health care provider. (2) The Department of Defense shall not be lia- ble 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 (h), that a claim under this section in excess of $100,000 is meritorious, and the claim is other- wise 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 med- ical malpractice or the payment of all or part of a claim under this section, the Secretary of De- fense shall submit to the Director of the Defense Health Agency a report documenting such deter- mination or payment to be used by the Director for all necessary and appropriate purposes, in- cluding medical quality assurance. (f) JUSTIFICATION OF DENIAL.—If a claim under this section is denied, the Secretary of Defense shall provide the claimant with detailed rea- soning justifying the denial of the claim, includ- ing— (1) 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 med- ical opinion; and (2) 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). (g) EXPERT MEDICAL OPINIONS.—In using an ex- pert medical opinion to evaluate a claim under this section, the Secretary of Defense shall use the opinion of— (1) an individual who is board-certified in the medical specialty with respect to that claim; or (2) 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 rel- evant medical, dental, or related health care function. (h) REGULATIONS.—(1) The Secretary of De- fense 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 pay- ment of a claim; (iii) such other matters relating to the processing and administration of a claim, in- cluding an administrative appeals process, as the Secretary considers appropriate. (B) Uniform standards consistent with gen- erally accepted standards used in a majority of States in adjudicating claims under chapter 171 of title 28 (commonly known as the ‘‘Fed- eral 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 giv- ing rise to the claim or the military depart- ment or service of the member of the uni- formed 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 Depart- ment of Defense health care provider in the context of performing medical, dental, or re- lated 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 spe- cific facts and circumstances; (iii) requirements relating to proof of duty, breach of duty, and causation result- ing 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 con- siders appropriate. (3) In order to implement expeditiously the provisions of this section, the Secretary may prescribe the regulations under this sub- section— (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. (i) LIMITATION ON ATTORNEY FEES.—(1) No at- torney shall charge, demand, receive, or collect Page 2191 TITLE 10—ARMED FORCES § 2734 for services rendered, fees in excess of 20 percent of any claim paid pursuant to this section. (2) Any attorney who charges, demands, re- ceives, or collects for services rendered in con- nection 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. (j) ANNUAL REPORTS.—Not less frequently than annually until 2028, the Secretary of Defense shall submit to the Committees on Armed Serv- ices of the Senate and the House of Representa- tives a report on claims processed under this section that includes, with respect to the period covered by the report, the following: (1) The number of claims processed under this section. (2) The average timeline for resolving such claims. (3) The resolution of each such claim. (4) 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 re- quirement. (5) Any other information that the Secretary determines may enhance the effectiveness of the claims process under this section. (k) DEFINITIONS.—In this section: (1) COVERED MILITARY MEDICAL TREATMENT FACILITY.—The term ‘‘covered military med- ical treatment facility’’ means a facility de- scribed 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 Depart- ment to provide health care services and act- ing within the scope of employment of such in- dividual. (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 per- sonal injury or death that occurred while the member was in Federal status. (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.) Editorial Notes AMENDMENTS 2024—Subsecs. (a), (b)(6), (d)(1). Pub. L. 118–159, § 731(1), substituted ‘‘subsection (h)’’ for ‘‘subsection (g)’’. Subsec. (f)(1). Pub. L. 118–159, § 731(2), inserted ‘‘, and information regarding the qualifications of each such expert who provided an expert medical opinion’’ before the semicolon. Subsecs. (g) to (i). Pub. L. 118–159, § 731(3), (4), added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively. Former subsec. (i) redesig- nated (j). Subsec. (j). Pub. L. 118–159, §§ 731(3), 732, redesignated subsec. (i) as (j) and amended it generally. Prior to amendment, subsec. related to annual reports. Subsec. (k). Pub. L. 118–159, § 731(3), redesignated sub- sec. (j) as (k). 2023—Subsec. (a). Pub. L. 118–31, § 713(1), substituted ‘‘subsection (g)’’ for ‘‘subsection (f)’’. Subsec. (b)(6). Pub. L. 118–31, § 713(2), substituted ‘‘subsection (g)’’ for ‘‘subsection (f)’’. Subsec. (d)(1). Pub. L. 118–31, § 713(3), substituted ‘‘subsection (g)’’ for ‘‘subsection (f)’’. Subsecs. (f) to (j). Pub. L. 118–31, § 713(4), (5), added subsec. (f) and redesignated former subsecs. (f) to (i) as (g) to (j), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 116–92, div. A, title VII, § 731(d), Dec. 20, 2019, 133 Stat. 1460, provided that: ‘‘(1) EFFECTIVE DATE.—The amendments made by this section [enacting this section and amending section 2735 of this title and section 1304 of Title 31, Money and Finance] 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.’’ § 2734. Property loss; personal injury or death: incident to noncombat activities of the armed forces; foreign countries (a) To promote and to maintain friendly rela- tions through the prompt settlement of meri- torious claims, the Secretary concerned, or an officer or employee designated by the Secretary, may appoint, under such regulations as the Sec- retary may prescribe, one or more claims com- missions, each composed of one or more officers or employees or combination of officers or em- ployees of the armed forces, to settle and pay in an amount not more than $100,000, a claim against the United States for— (1) damage to, or loss of, real property of any foreign country or of any political subdivision or inhabitant of a foreign country, including damage or loss incident to use and occupancy; (2) damage to, or loss of, personal property of any foreign country or of any political sub- division or inhabitant of a foreign country, in- cluding property bailed to the United States; or (3) personal injury to, or death of, any inhab- itant of a foreign country; if the damage, loss, personal injury, or death oc- curs outside the United States, or the Common- wealths or possessions, and is caused by, or is otherwise incident to noncombat activities of, the armed forces under his jurisdiction, or is caused by a member thereof or by a civilian em- ployee of the military department concerned or the Coast Guard, as the case may be. The claim of an insured, but not that of a subrogee, may be considered under this subsection. In this sec- tion, ‘‘foreign country’’ includes any place under the jurisdiction of the United States in a foreign country. An officer or employee may serve on a claims commission under the jurisdiction of an- other armed force only with the consent of the