and others. And although Social Security benefits are non-assignable and cannot be garnished by anyone else, Medicare can offset MSP payments due against future Social Security and Medicare benefits. ERISA claims. ERISA plan beneficiaries’
recoveries are exposed only to equitable claims of ERISA insurers, and thus the question is what equitable (in the tech- nical, not popular sense) right does the insurer have to property of the insured? To be sure, there does not appear to be a substantive limit on what rights the insurer might have. Does it have a right to be reimbursed out of the insured’s existing assets, such as life savings or an inheritance? If not, that must because the remedy must to some extent shape the right, and if the claim is based on the tort that gave rise to the injury, the equitable remedy sounds in subrogation. The statute at issue in Ahlborn was cast in terms of causation and assignment (42 U.S.C. § 1396k(a)(1)(A)(State shall
require applicants as a condition of eligibility “to assign the State any rights ... to payment for medical care from a third party”), which would appear to be a statutory version of subrogation designed to eliminate the restrictions or limitations that might otherwise apply to the State’s subrogation claim. The practical result would look like the result in Ahlborn – the insurer can recovery only to the extent its obligation arose from another’s tort, and then only to the extent that the insured plaintiff re- covered from the tortfeasor for medical expenses for which the insurer paid.
Conclusion The potential for losing the benefit of a
successful personal injury requires plain- tiffs’ counsel to attend to the problems and risks from the outset. The exposure to subrogation and recovery claims would appear to be as much a part of the assessment of such claims as physician
review to determine whether there was malpractice in the first place. Whether or not properly anticipated, the defense against those claims requires a whole new area of knowledge, analysis and possibly litigation to get clients the recovery they sought in the first place. n
About the Author
Ron M. Landsman, the principal of Ron M. Landsman, P.A., is a founding member and fellow of the National Academy of Elder Law Attorneys and a member of the Special Needs Alliance, an association of lawyers who specialize in drafting, implementing, managing and advising trustees of special needs trusts. He is lead counsel in Brown v. Payne, D.C. Superior Court, a proposed class action challenging Washington, DC Medicaid’s estate recovery practices. His office is in Rockville and he practices throughout Maryland and in Washing- ton, DC.
60
Trial Reporter
Summer 2007
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76