32 CFR § 45.11 - Calculation of damages: offsets for DoD and VA Government compensation.

§ 45.11 Calculation of damages: offsets for DoD and VA Government compensation.

(a) In general. Total potential damages calculated under this part, both economic and non-economic, are reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or VA for the same harm that is the subject of the medical malpractice claim. The general rule is that prospective medical malpractice damage awards are offset by DoD or VA payments and benefits that are primarily funded by Government appropriations. However, there is no offset for U.S. Government payments and benefits that are substantially funded by the military member. DoD is responsible for determining offsets, but claimants must provide information not available to DoD, but requested by DoD for the purpose of determining offsets.

(b) Eligibility for payments and benefits. In determining the offsets that are applied to a medical malpractice damages award under this part, DoD presumes that a claimant will receive all the payments and benefits for which the claimant is expected to be eligible, whether or not the claimant has taken steps to obtain the payment or benefit or ultimately receives such payment or benefit. A claimant may present evidence that he or she is not eligible for a payment or benefit to rebut the presumption.

(c) Information considered. In determining offsets under this section, DoD will consider all data available in DoD records or information systems, other U.S. Government records systems, and other information available to DoD. This data may include information on military pay and allowances, Disability Evaluation System outcomes, VA disability claims, marital status, number and ages of dependents, survivor benefits, and other information. Access to all such information will be in accordance with the Privacy Act, 5 U.S.C. 552a, and applicable implementing regulations.

(d) Present value of future payments and benefits. In determining offsets under this section, DoD will estimate the present value of future payments and benefits. Many such payments and benefits in cases of disability or death are lifetime benefits for members or survivors. With respect to any lifetime payments or benefits that may terminate upon the remarriage of a surviving spouse, DoD will not assume a remarriage. Estimates will be based on actuarial information provided by the Chief Actuary, DoD Office of the Actuary, taking into consideration methods and assumptions approved by the DoD Board of Actuaries and DoD Medicare-Eligible Retiree Health Care Board of Actuaries, respectively, as of the recent actuarial valuation date.

(e) Payment and benefit programs. The listings in this section of certain programs that offset and do not offset potential medical malpractice damages awards are not all-inclusive and are subject to adjustment as necessary to account for compensation otherwise provided by DoD or VA for the same harm that resulted from the medical malpractice. Because compensation programs are often changed by Congress, Federal agencies, or judicial decisions, DoD will annually review relevant programs and take account of any such changes for purposes of applying the rules of this section to the adjudication of claims under this part.

(f) Payments and benefits that are offsets. Potential damage awards under this part are offset by the present value of the following payments and benefits:

(1) Pay and allowances while a member remains on active duty or in an active status.

(2) Disability retired pay in the case of retirement due to the disability caused by the alleged medical malpractice.

(3) Disability severance pay in the case of non-retirement disability separation caused by the alleged medical malpractice.

(4) Incapacitation pay.

(5) Involuntary and voluntary separation pays and incentives.

(6) Death gratuity.

(7) Housing allowance continuation.

(8) Survivor Benefit Plan.

(9) VA disability compensation, to include Special Monthly Compensation, attributable to the disability resulting from the malpractice.

(10) VA Dependency and Indemnity Compensation, attributable to the disability resulting from the malpractice.

(11) Special Survivor Indemnity Allowance.

(12) Special Compensation for Assistance with Activities of Daily Living.

(13) Program of Comprehensive Assistance for Family Caregivers.

(14) Fry Scholarship.

(15) TRICARE coverage, including TRICARE-for-Life, for a disability retiree, family, or survivors. Future TRICARE coverage is part of the Government's compensation package for a disability retiree or survivor.

(g) Payments and benefits that are not offsets. Potential awards under this Part are not offset by the present value of the following payments and benefits.

(1) Servicemembers Group Life Insurance.

(2) Traumatic Servicemembers Group Life Insurance.

(3) Social Security disability benefits.

(4) Social Security survivor benefits.

(5) Prior Government contributions to a Thrift Savings Plan.

(6) Commissary, exchange, and morale, welfare, and recreation facility access.

(7) Value of legal assistance and other services provided by DoD.

(8) Medical care provided while in active service or in an active status prior to death, retirement, or separation.

[86 FR 32208, June 17, 2021; 86 FR 33885, June 28, 2021, as amended at 87 FR 52462, Aug. 26, 2022]