vices were provided prior to age 55, but none of those facts (except to the extent they make out a hardship defense) are relevant to subrogation claims. Whether they are relevant to forestall an SNT remainder claim is an open question. The context of the Medicaid claim will
provide the procedure for resolution. A subrogation claim in a personal injury suit will be resolved, if all else fails, by the trial court. If the only issue is al- location, the logic of Lugo ex rel. Lugo v. Beth Israel Medical Center gives you at least a pro rata reduction, once you have excluded the erroneous or non- causal claims. An estate claim arises by definition in a probate proceeding. If not resolved by negotiations initially, the personal representative who is unwilling to pay the amount demanded denies the claim, and the Medicaid agency then has 60 days to file a petition for allowance of the claim (see Md. Estates and Trusts Art., § 8-107(b). There is no well-established procedure yet for
resolution of claims against SNTs. The demand may be treated as a final agency determination subject to review under the Administrative Procedure Act, but a trustee ought to be able to invoke a cir- cuit court’s general equity jurisdiction, if not its jurisdiction over trusts generally. Id., § 14-101 et seq. While the quality of claims made
will vary widely, and the procedures are significantly different, AAJ’s Center for Constitutional Litigation, in its post- Ahlborn memorandum, provided useful general advice on how to approach potential claims. It is worth quoting at some length:
1) Provide timely written notification to the relevant governmental agency that you will be seeking recovery for tort damages, possibly includ- ing repayment of the government’s medical expenses. Ask the govern- ment to provide an accounting of its medical costs, Invite the government
to participate in the lawsuit. Inform the government agency of your un- derstanding, based on Ahlborn, that any tort recovery must be equitably apportioned between the plaintiff and the government. (Although the Court did not accept the government’s characterization in Ahlborn that the plaintiff had breached her duty of cooperation, you do not want to give a court any basis for concluding that you are trying to gain any unfair advantage over the government in pursuing any recovery.)
2) Make a tactical decision whether to seek recovery for medical costs paid by the government and be explicit about the decision in your pleadings. (Unless some particular regulatory or contractual requirement obligates the plaintiff to herself seek reimbursement of the government’s health care expenses, plaintiff would appear to have the option of leaving it
Structured Settlements
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Fall 2008
Trial Reporter
47
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