to the government to pursue its claim for reimbursement. Whether to seek recovery of such costs (which will need to be paid over to the govern- ment), therefore, becomes a tactical decision based on factors such as the collateral source rule in your local jurisdiction, the likely effect on the size of any judgment/recovery, the willingness of the government to contribute to litigation costs. Etc. If a decision is made not to seek recovery for the government’s medical costs. This fact should be made explicit in the pleadings. Thereby putting both the government and the defendant on notice of the possibility of a separate claim by the government to recover its costs, Likewise, any settlement, release, etc. under such circumstances should make clear that it is not waiv- ing any claim by the government.)
3) Seek to negotiate an agreement with the government over the equitable apportionment of any settlement and, if such an agreement cannot be reached, apply to the court for an order that equitably allocates any court settlement among categories of damages. (It is simple if the gov- ernment will agree to a reasonable division of any recovery. If not, it is important to ask the court to allocate any settlement recovery among vari- ous items of damages, along the lines of a special verdict. You can alert the court to the Supreme Court’s endorse- ment of this practice in the Ahlborn ruling, 126. S.Ct. at 1256 and n.17. It would probably be the best practice to notify the government of such an
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48 Trial Reporter
allocation request and invite govern- ment counsel to appear and present argument concerning an equitable allocation. If, for conjunction with the settling defendant-should propose and equitable allocation of the settlement and incorporate it into any agreement. Recognize that you may later be called upon to defend the reasonableness of this allocation.)
4) If the government agency asserts a right to priority reimbursement, be prepared to argue that the gov- ernment’s claim of priority was rejected by (or is at least incon- sistent with) the rationale of the Supreme Court in Ahlborn.
Whatever procedure applies, the
following general rules are also appro- priate. First, ask the agency to provide a bill
as it were – a detailed statement of all charges and all goods and services paid for. Review it for accuracy and make sure all of the charges are in fact for your cli- ent and in fact related to the injury upon which suit is based. It is easy enough to sort out the charges made before the date of injury, and hardly more difficult to exclude the charges for Viagra for your 89-year-old widow who suffered a broken hip. But it should not be hard to appreciate that for most attorneys, the fine points of medical goods and services and their relationship to a particular injury or treatment may require more education and training than they have; there are services available to review and analyze such bills and claims. Second, review those claims against the billing and service records of all
providers to identify discrepancies. Third, require strict proof by the
claimant that it has paid the claims its computer records report.
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 is the principal of Ron M. Landsman, P.A., focusing on Medicaid, including estate recoveries, supplemental needs trusts, estate and disability planning, and guardianship and conservatorship in Washington, D.C., and Maryland. He received his law degree from the University of Michigan, 1974, clerked in the [old] Fifth Circuit, handled antitrust appeals at the Depart- ment of Justice for four years, mostly related to U.S. v. AT&T, and has had his own practice for the past 25 years. He is a Fellow of the National Academy of El- der Law Attorneys, a member of Special Needs Alliance, LLC, and a member of the board of directors of Shared Hori- zons, Inc., which manages the Wesley Vinner Memorial Trust, a d-4-C trust, in addition to bar activities in D.C. and Maryland. He is lead counsel in Brown v. Pane,
D.C. Superior Court, Civil Action No. 5079-06, a proposed class action chal- lenging D.C. Medicaid’s estate recovery practices. His office is in Rockville and he prac- tices throughout Maryland and D.C.
Fall 2008
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