Malpractice? (Continued from page 14)
argued) in which the Government could make payments. There sim- ply are no regulations that interpret the prompt payment requirement in a way that would permit the Government to seek reimburse- ment when the Government does not expect prompt payment.
Cases The Government Relies On To Support Its Position
COX v. SHALALA, 112 F.3d. 151 (4th
Cir. 1997). The issue was whether North Carolina’s wrongful death law, which lim- its payment of medical expenses to $1,500, is preempted by Medicare Sec- ondary Payer Act. The plaintiff was trying to limit recovery by Medicare to $1,500 when Medicare had paid more than $180,000 for medical expenses. (Authors note: the court and the parties completely overlooked the “prompt payment” argu- ment. In fact, when quoting the statute, the court misquotes the statute by failing to quote the word “promptly.”) UNITED STATES v. SOSNOWSKI, 822 F. Supp. 570 (1993, W.D. Wisc.) The
Government sued a plaintiff and his at- torney for failing to reimburse Medicare. The court cites the statute and says “pay- ment by Medicare is conditional when payment has been or can reasonably be expected to be made under an automo- bile or liability insurance policy.”
[The
court does not quote the statute properly in that it eliminates the word “promptly” from its quote.] The plaintiff and the at- torney did not contest the requirements of the statutes and regulations and tried to make an argument based upon estop- pel. The decision has a lot of conclusory language about the Government’s rights that completely ignore the “prompt pay- ment” argument. Of course, no one made the “prompt payment” argument in the case.
UNITED STATES v. GEIER, 816 F.
Supp. 1332 (D. Wis. 1993). MSP statute established that Medicare payments to plaintiff were conditional and that Con- gress intended for United States’ claims to take priority over all other rights of re- covery. Addressing the difference in language in the 1989 amendment, the Court noted that “[t]he 1989 amendment simply reorganized the structure of the statute and further clarified the United
States’ right of recovery of conditional Medicare payments.” WATERS v. FARMERS TEXAS
COUNTY MUTUAL INS. CO., 9 F.3d 397 (5th Cir.1993)[Medicare will ordi- narily pay for the beneficiary’s care in the usual manner and then the Government may seek reimbursement from the private insurance carrier after, and to the extent that such carrier’s liability under the pri- vate policy for services has been determined.]
OREGON ASS’N OF HOSP. v.
BOWEN, 708 F. Supp. 1135, 1140 (D. Or. 1989) [Statute authorizes conditional payments when the payment under a li- ability insurance policy cannot reasonably be expected to pay promptly.] FILIPPI v. U.S. DEPT OF HEALTH AND HUMAN RESOURCES, 138 F. Supp.2d 545 (S.D.N.Y. 2001) [While Medicare does not cover costs of health care services as to which “payment has been made, or can reasonably be expected to be made” under a liability insurance plan, it may conditionally pay health care costs incurred as a result of injuries caused by a third-party, or that may ultimately be covered by an insurance policy. Such payments are conditional because Medi-
16
Trial Reporter
Spring 2003
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