Medical Malpractice
Court, federal law requires that States seek reimbursement for Medicaid expenditures, but federal law also plainly contemplates that States will do so via pursuit of direct actions against responsible third parties, not via the assertion of either subrogation claims or liens against tort recoveries achieved by Medicaid Recipients. Te federal statute requires that States participating in Medicaid “will take all reasonable measures to ascertain the legal liability of third parties,” and “will [collect] sufficient information to enable the State to pursue claims against such third parties.” 42 U.S.C. §1396(a) (25)(A) (emphasis added.) Another provision requires that Recipients, as a condition of eligibility, must cooperate with the State “in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan.” 42 U.S.C. §1396k(a)(1)(C) (emphasis added.) Similarly, the provisions of 42 U.S.C. §1396k(b) reveal
a Congressional expectation that participating States will be actively involved in prosecuting reimbursement claims, providing that a participating State which has collected money under an assignment may retain only those proceeds necessary to reimburse it and the federal government for Medicaid’s costs and must refund the remainder of the money
to the Recipient. Finally, §1396a(a)(25)(B) requires a State to “seek reimbursement” from third parties with “legal liability” to pay “for care and services available under the plan” in those situations where “the amount of reimbursement the State can reasonably expect to recover exceeds the cost of such recovery.” In the view of the Tristani court, the plain language of these statutory provisions revealed “that Congress believed that participating States would not only pursue liable third parties directly, but that they would also incur costs in seeking to recover their expenditures.” Id. at 469. Tese provisions, combined with the anti lien and anti recovery provisions, led the court to conclude that a state’s post settlement efforts to reach settlement proceeds in the hands of a Recipient violate federal law. Not surprisingly, the Pennsylvania Department of Welfare sought and obtained permission to file an interlocutory appeal to the United States Court of Appeals for the Tird Circuit.6 Also not surprisingly, many of us in the plaintiff’s personal injury bar began to make not only Ahlborn arguments, but also Tristani arguments, in the course of our negotiations with the Department. What was surprising – at least to me – was the Department’s response to these arguments.
Instead of evidencing a greater willingness to compromise 6 Tat appeal remains pending at this time.
Trial Reporter / Summer 2010 35
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