Nursing Home Litigation
4. Recovery Under the Medicare Secondary Payer Act
Another potential but relatively unknown vehicle to recover
damages in nursing actions is the Medicare Secondary Payer Act. A private cause of action is set forth in 42 U.S.C. § 1395y, and provides: “Tere is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).”2
5. Breach of Contract Finally, for private pay and assisted living clients, a breach
of contract action remains an additional cause of action and potential avenue for damages in addition to a malpractice action. In an assisted living context, a client may have certain health and medical needs that a facility is incapable of providing. In such an instance, your client may not have been an appropriate candidate for admission to such a facility. If so, a breach of contract action may lie against the facility.
2 For a complete discussion, see Richard Neuworth and Kevin I. Goldberg, “Te MSP’s Act’s Hidden Remedy: Dealing With Medicare Reimbursement May Be Difficult , But Te Medicare Secondary Payer Act Provides A Little-Understood Private Cause Of Action Tat May Strengthen Your Client’s Case,”Trial, August, 2009.
Conclusion With no lost earnings and with punitive damages being
all but unavailable, representing elderly clients in nursing home and assisted living cases in Maryland presents unique challenges. However, by identifying all potential claimants and beneficiaries, assessing the need for any future medical costs, and ensuring that only properly attributable bills are included in a conditional payment and final demand letters from Medicare, you will be able to maximize damages for your clients.
Biography Gregory L. Lockwood is a partner at the law firm of
Treanor Pope & Hughes where concentrates in long-term care, medical malpractice and person injury litigation. He is on the MAJ Board of Governors, and currently serves as co-chair of the Mentor/Mentee Committee and Nursing Home Section. He is a 1990 graduate of the University of Maryland School of Law, holds a Master’s of Arts degree from the University of Maryland at College Park, and is a 1985 graduate of St. Mary’s College of Maryland.
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