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Medical Standard of Care in the Foreign Claims Arena

Medical Standard of Care in the Foreign Claims Arena . Douglas A. Dribben Foreign Torts Branch US Army Claims Service 4 March 2008. Agenda. Introduction Law Process Common Issues Where to Turn? References. Introduction.

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Medical Standard of Care in the Foreign Claims Arena

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  1. Medical Standard of Care in the Foreign Claims Arena Douglas A. Dribben Foreign Torts Branch US Army Claims Service 4 March 2008

  2. Agenda • Introduction • Law • Process • Common Issues • Where to Turn? • References

  3. Introduction • US Health Care Providers (HCPs) in military medical facilities overseas. • Bad results happen to good people • Medicine is not perfect • Greater awareness of claims

  4. Law • Military Claims Act, 10 USC 2733 • Foreign Claims Act, 10 USC 2734 • International Agreement Claims Act, 10 USC 2734a • Status of Forces and other agreements • DODD 5515.8 – SSR • 10 USC §1089(f)

  5. Process • Proper claimants • Proper filing • SOL • Exclusions • Investigation • Adjudication

  6. Proper Claimants • Patients • Feres/Incident to Service • Pregnant soldiers • Family members • Estates/guardians

  7. Proper Filing • Sum Certain • Properly signed • In writing* • Sufficient facts • Statute of Limitations • US v. Kubrick, 444 US 111 (1979)

  8. Exclusions • SOFA • Statute of limitations • Another Statute Takes Precedence • Workers Compensation • Vaccine claims • Constitutional torts • Assault/battery* • Libel, misrepresentation

  9. Investigation

  10. Claim Investigations • Personnel: CJA/MCI • PCE vs. claim • Sequester medical records/ notes/imagery • Review medical records – DO NOT ALTER • Make MFR of recollection of case once notified

  11. Claim Investigations • Interview • Explain medical terms and abbreviations • QA/RM • Submissions • Opinion • Review MFR

  12. Claim Investigations • Assist MCI in focusing medical issues • Standard of Care • MCA – American • FCA – American? • SOFA – Host nation in scope – recent case – host nation?

  13. Liability • Loss of Chance • Burden of Proof • Compromise • SOFA award • Legal vs. factual reasons

  14. Common Issues • What law applies? • What standard of care? • Language issues? • Use of local national HCPs • Medical records translation and quality • Cultural issues

  15. Sample Cases • Recently married dependent spouse presents to ED with GI complaints. • Language difficulties • Cultural difficulties • At ED • On ward

  16. Sample Cases • Dependent spouse gives birth in contracted local national hospital. • US HCP accompanies, provides history, hands off patient; no further care • Allegations – MOU and history negligent

  17. Sample Cases • Retiree presents with CD from local national HCP of colonoscopy and suspicious polyp, but no biopsy. • US HCP uses CD, operates – normal fold • Issue – reliance on local national report

  18. Sample Cases • Local national civilian presents as emergency GI case. • No evidence re: previous history or treatment • Previous/follow-on care in local national hospital • SOC – local? US?

  19. Where to Turn? • MCJA office • Servicing OSJA • Command Claims Services • USARCS FTB • MEDCOM OSJA

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